The Caribbean Court of Justice (CCJ) yesterday upheld the validity of the will of Yusuf Mongroo, the owner of Horseshoe Racing Service and overturned a unanimous decision by the Guyana Court of Appeal.
The case is that of Sasedai Kumarie Persaud v Sherene Mongroo, Zenobia Rosenberg and Indranie Mulchand and the decision restored the judgment of the High Court.
In the appeal, Yusuf Mongroo made a will in which he appointed his business manager, Sasedai Persaud, as executor, and made her the principal beneficiary. His common-law wife, Indranie Mulchand, also benefitted under the will. The will was made a few days before his death and was challenged by his daughters, Sherene Mongroo and Zenobia Rosenberg, who did not receive any benefit under the will.
A release from the CCJ said that in the High Court, the trial judge, Roxane George found that the will of Mr Mongroo was valid and effective, and approved for probate purposes, the copy of the will was put into evidence during the trial. On appeal to the Court of Appeal, the decision of the trial judge was reversed and the will was held to be invalid and ineffective. Sasedai Persaud then appealed to the CCJ.
In a judgment authored by Justice Rajnauth-Lee, the CCJ first considered whether conflicting opinions delivered in the Court of Appeal, on certain issues, resulted in a defective judgment on those issues, that should be set aside. The release said that the CCJ underscored that in its Appellate Jurisdiction, it is a superior court of record with such jurisdiction and powers as are conferred on it by the Agreement Establishing the Caribbean Court of Justice, the Constitution or any other law of the Contracting Party.
“Accordingly, the CCJ noted that it was empowered in an appeal from Guyana to ensure the determination on the merits of the real question in controversy between the parties. For that reason, the CCJ did not agree with the submission that the conflicting opinions of the Court of Appeal resulted in a defective judgment that ought to be set aside. The CCJ was, therefore, able to hear the case on its merits and proceeded to do so”, the release said.
Additionally, before embarking on the issues which largely concerned findings of fact made by the trial judge, the CCJ explained that where a trial judge had properly utilised the distinct advantage of having seen and heard the witnesses, had adequately evaluated the witnesses, and weighed the facts and circumstances of the case, an appellate court ought not to lightly reverse findings of credibility arrived at by the trial judge.
On the issue of whether Mr Mongroo had the required testamentary capacity, the CCJ found that there were no circumstances that should have aroused the suspicion of the trial judge in this case. In particular, the CCJ noted that the trial judge accepted the evidence of Vidyanand Persaud, Attorney-at-Law who prepared the will, and of Dr Rohan Jabour, a medical doctor, who was one of the witnesses to the will.
The release said that the trial judge also found that the daughters had not established that they enjoyed a close relationship with their father. The CCJ, therefore, found that the evidence accepted by the trial judge provided a sufficient basis on which she could have found that Mr Mungroo had the requisite testamentary capacity.
Concerning certain formality requirements in section 4 of the Wills Act, the CCJ observed that the will was not signed in the presence of the witnesses, as stated in the attestation clause, that part of a will that has the signature of the person making the will and the witnesses.
“Consequently, the presumption of due execution could not be applied. However, the Court was of the view that having regard to the evidence accepted by the trial judge, and in particular, the evidence of Dr Jabour, the trial judge’s finding that Mr Mongroo acknowledged his signature on the will in the presence of both witnesses, who signed in his presence, and of each other, could not be faulted. The Court, therefore, held that due execution of the will had been established”, the release said.
The CCJ concluded that the trial judge considered the evidence of the two expert witnesses who examined the will. Therefore, the Court found that the trial judge was correct to find that the signature on the will was that of Mr Mongroo.
According to the judgment, Mr Mongroo died on 15 August 2010 at the age of 83 years at the St Joseph Mercy Hospital in Georgetown. He owned and operated a business Horseshoe Racing Service at Lots 6-7A Commerce and Longden Streets, Georgetown, Guyana. He also owned a residential property at Lot 107 New Garden Street, Queenstown, Georgetown, Guyana, and was known to have owned assets abroad including real estate and racehorses in Barbados and a bank account in the Cayman Islands.
He made separate wills disposing of his assets in Guyana, Barbados and the Cayman Islands. The Last Will and Testament of the deceased disposing of his assets in Guyana (the Guyana will) was allegedly executed on 12 August 2010 and is the subject of the instant dispute. In the Guyana will, the deceased instructed as follows: (a) The property at Lots 6-7A Commerce and Longden Streets, Georgetown, be devised to Sasedai Persaud; (b) Sasedai Persaud to assume sole ownership, management and control of the Horseshoe Racing Service, and the net proceeds of the business be apportioned: fifty-five percent to Sasedai Persaud, and the remaining forty five percent to Indranie Mulchand; (c) The property at 107 New Garden Street, Georgetown be devised to Indranie Mulchand; (d) The residue of the deceased’s estate in Guyana be bequeathed to Sasedai Persaud and Indranie Mulchand in equal shares. The children of the deceased derived no benefit under the Guyana will.
Proceedings were brought in the High Court by Sherene and Zenobia against Sasedai and Indranie contesting the validity of the Guyana will. The trial judge, Justice George found that the will of Mr Mongroo was valid and effective, dismissed the claim, and amended the defence and counterclaim to the effect that probate in solemn form was granted with respect to the copy of the will presented to the court.
On appeal to the Court of Appeal, the decision of the trial judge was reversed and the will was held to be invalid and ineffective.
According to the CCJ decision, the trial judge indicated at the outset that she accepted that Sherene Mungroo, Zenobia Rosenberg and Nyron Dexter Lathuillerie were the children of the deceased, a national of Trinidad and Tobago, but who had lived in Guyana for many years. The trial judge found as a fact that Sherene, Zenobia and Nyron did not establish that they enjoyed a close relationship with the deceased. In addition, the trial judge observed that except for Zenobia there was no evidence that the other children even knew that the deceased was ill.
The trial judge found that there was no evidence advanced on behalf of Sherene and Zenobia that either Sasedai or Indranie was responsible for or had anything to do with preparation or execution of the Guyana will. The trial judge concluded that all the evidence pointed to Sasedai having nothing to do with the Guyana will, except for taking it to Persaud and then attending Messrs Cameron and Shepherd with instructions to have the will probated. On the evidence, the trial judge found that there was no collusion between Persaud and either Sasedai or Indranie in relation to the preparation and/or the execution of the Guyana will.
In the circumstances, the court found that there were no suspicious circumstances attendant in the making of the Guyana will and that there was no evidence of undue influence on the part of either Sasedai or Indranie in relation to the preparation or execution of the Guyana will. She further found that the deceased possessed the requisite testamentary capacity to make the Guyana will, and that the Guyana will was duly signed by the deceased and duly executed in compliance with the Wills Act.
In the Court of Appeal Justice Yonette Cummings-Edwards expressed the view that on the totality of the evidence, she did not agree with the findings of the trial judge on the issue of the capacity of the deceased to make the Guyana will. For this and other reasons the Court of Appeal overturned the decision.
On 28 February 2023, Sasedai Persaud appealed the decision of the Court of Appeal.
In its judgment, the CCJ noted that Justice Cummings-Edwards did not agree with the trial judge. She thought that the issue to be determined was whether the deceased had testamentary capacity to execute the will, assuming that the will was made by him. The judgment said that she relied heavily on the testimony of Dr Nehaul Singh Head of the Pathology Department at the Georgetown Hospital Corporation in Guyana. Dr Singh had performed the post-mortem on the deceased. He testified that the deceased was a severely ailing person and that the mental functions of such a person, especially an 83-year-old with cerebral atrophy, whether ill or not, would be impaired.
Justice Cummings-Edwards was of the view that although Dr Singh did not see Mr Mongroo alive or perform any medical examination on him, the evidence of his post-mortem findings could not be discounted.
She expressed the view that testamentary capacity at the time instructions are given for the preparation of the will, and knowledge and approval of the contents of the will at the time of execution must go hand in hand. She said that if indeed Mr Mongroo had signed the Guyana will when his medical condition had worsened (having regard to the evidence of Dr Singh) he may have been liable ‘to be made the instrument of those around him’.
The trial judge in the High Court found that Dr Singh’s evidence did ‘not point to total impairment so as to totally affect the mental and motor skills and functioning.’ Physical impairment there clearly was, but nothing in the evidence remotely suggested that this was such as to affect the ability of the deceased to communicate and to sign the documents on 12 August. In addition, the trial judge noted that the deceased had signed a blood transfusion form on the morning of 12 August. The trial judge therefore found as a fact that the deceased was alert when he acknowledged his signature to the doctors.
The CCJ upheld the view that Mr Mungroo was in a position to make his will. There were also lengthy deliberations by the CCJ on the signature – with each side having an expert – to the will but the CCJ ruled that the High Court was correct in accepting the will.
The matter was heard by Justice Adrian Saunders, President and Justices Jacob Wit, Maureen Rajnauth-Lee, Andrew Burgess and Peter Jamadar.
Hari Ramkarran SC, Nikhil Ramkarran and Kamal Ramkarran appeared for the Appellant, Sasedai Persaud. Shaunella Glen, Tamara Khan and Paula Jones-Nicholson appeared for the First Respondent. C. A. Nigel Hughes, Savannah Barnwell, Sophia Findlay, Edrianna Stephen and Michael Jagnanan appeared for the Second Respondent. C. V. Satram, Mahendra Satram and Ron Motilall appeared for the Third Respondent.
