Campbell v Narine
| Jurisdiction | Caribbean States |
| Judge | Hayton, J. |
| Judgment Date | 17 March 2016 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. GYCV2015/004; GY Civil Appeal No. 57 of 2006 |
| Date | 17 March 2016 |
Caribbean Court of Justice
Byron, P. CCJ; Suanders, J. CCJ.; Hayton, J. CCJ.; Anderson, J. CCJ.; Rajnauth-Lee, J. CCJ.
CCJ Appeal No. GYCV2015/004; GY Civil Appeal No. 57 of 2006
Mr. Sanjeev J Datadin and Mr. Charles Ramson for the applicant.
Mr. Rajendra Poonai, Mr. Chandrapratesh Satram and Mr. Mahendra Satram for the respondents.
Civil Appeal - Probate — Wills — Whether the court of appeal should have interfered with the trial judge's finding of fact — Whether undue influence had been established — Unconscionable bargaining — Undervalue agreement.
[1] The appellant, Errol Campbell, is the executor of the Estate of Hermelita Feinmesser, who was the aunt of his wife, Nadya. Mrs. Feinmesser died on 2nd August 1993 and was the owner of the property in dispute situated at 73/83 Brickdam, Georgetown, Guyana. The respondent, Janette Narine, and the deceased were close friends. After the death of her husband in 1983, Mrs. Feinmesser invited the divorced Mrs. Narine and her children to move into the Brickdam premises and live with her.
[2] In 1986, Mrs. Feinmesser migrated to Canada and left Mrs. Narine and her daughter and son-in-law in the Brickdam premises. At the urging of Mrs. Feinmesser, Mrs. Narine in October 1987 migrated to Canada, where they lived together in a house and then a bungalow purchased by Mrs. Feinmesser. The two of then visited a lawyer for Mrs. Feinmesser to make a will in Mrs. Narine's favour. There was a copy in their joint bank box. Mrs. Narine also cooked for Mrs. Feinmesser.
[3] In December 1992, while visiting her daughter and new-born granddaughter in Guyana, Mrs. Narine became aware that Mrs. Feinmesser had taken ill and was hospitalised. During her stay in hospital Mrs. Feinmesser spent time in the Intensive Care Unit and received the last rites from a priest before recovering and going to stay with Mr. Campbell and his wife, Nadya. On her urgent return to Canada and their bungalow home, Mrs. Narine visited Mrs. Feinmesser in the hospital. When Mrs. Feinmesser was in an open ward but connected to a heart-monitor she signed on 16th December 1992 an Agreement for the sale of the Brickdam property to Mrs. Narine.
[4] The Agreement was witnessed by an attorney, Mr. Akai, and his secretary, and acknowledged receipt of a payment by Mrs. Narine of CAN$1,500 (representing G$100,000) towards payment of the purchase price of G$2,100,000. Mrs. Narine said she was unaware whether the value of the property was more or less than the purchase price, though expert evidence at the trial revealed that the property was then worth G$5,200,000. Mrs. Narine said that Mrs. Feinmesser had earlier contacted Mrs. Feinmesser's attorney, Mr. Akai, and instructed him to prepare the Agreement, and in Mrs. Narine's presence called Mr. Akai on December 16th 1992 to come to the hospital for the Agreement to be signed. On leaving hospital, but with medication for heart, lung and kidney problems, Mrs. Feinmesser went to stay with the Campbells before she was hospitalised in July 1993, dying on 2nd August 1993. Her will of 28th May 1993 essentially left her estate (which included the Brickdam property) to her niece, Nadya, and Nadya's father equally.
[5] On 15th June 1993 a letter was sent to Mrs. Narine at the Brickdam address on Mrs. Feinmesser's behalf by her Guyanese attorney, Mr. Charles Ramson. The letter sought rescission of the Agreement and stated, inter alia, that Mrs. Feinmesser had been “persuaded” by Mrs. Narine to execute the Agreement at a time when Mrs. Feinmesser believed that she was terminally ill. The letter also alleged that no consideration had been given at the execution of the Agreement. Although Mrs. Narine was informed of the letter by her daughter, there was no response to that letter until Mrs. Narine caused her lawyer in Guyana to send a letter to Mr. Campbell dated 20th December 1994 seeking to enforce the Agreement. Mrs. Narine accepted that Mrs. Feinmesser had visited her in the bungalow after Mrs. Narine knew of Mrs. Feinmesser's lawyer's June 1993 letter but Mrs. Narine had not raised it with her. Mrs. Narine took no further action until proceedings were brought against her.
[6] In December 1996 Mr. Campbell, in his capacity as executor commenced proceedings in the High Court against Mrs. Narine to set aside the Agreement on the basis that Mrs. Feinmesser had been induced to execute the Agreement when terminally ill in hospital and she had received no consideration, notwithstanding the acknowledgment of payment. Mrs. Narine countered that a valid Agreement did in fact exist and that Mrs. Feinmesser was aware of the terms of the Agreement in which she acknowledged that consideration had passed. In this regard, she alleged that she had paid over CAN$1500 to Mrs. Feinmesser in the hospital, representing G$100,000, towards the purchase of the property. She counterclaimed specific performance of the Agreement.
[7] The High Court considered that the overriding issue for determination was whether Mrs. Feinmesser, given the close nature of the relationship between her and Mrs. Narine, as well as her distressed medical state and the gross undervalue of the sale price, was capable of executing the Agreement of her own independent informed volition. The judge determined that Mrs. Narine was a trusted companion to the deceased, and that, based on this relationship and the suspicious circumstances surrounding execution of the Agreement, the onus was on Mrs. Narine to produce evidence that there was no undue influence or that the bargain was not unconscionable. She had not done so, so the judge found that Mrs. Narine had in fact exerted undue influence over Mrs. Feinmesser. Also, Mrs. Narine had secured an unconscionable bargain. In particular, the judge had concerns relating to the credibility of the evidence given by Mrs. Narine and was of the view that her demeanour before the court suggested that she was not being completely forthcoming. The judge also concluded that the CAN$1,500 had not actually been paid over to Mrs. Feinmesser in hospital. The judge ordered that the Agreement be rescinded and dismissed Mrs. Narine's counterclaim.
[8] The majority of the Court of Appeal disagreed with the judge. It strongly criticised the pleadings as insufficiently pleading the material facts in support of the claim, and not mentioning “undue influence” or “unconscionable bargain”. It held that the CAN$1,500 had been paid over to Mrs. Feinmesser by Mrs. Narine and there was no sufficient relationship of trust and confidence to the degree necessary to establish any undue influence, while the undervalue Agreement was not suspicious but explicable on motives of generosity and friendship. Moreover, the Agreement could not be set aside as an unconscionable bargain. Consequently, the court set aside the decision of the trial judge and granted Mrs. Narine an order for specific performance of the Agreement.
[9] In her minority judgment, Cummings-Edwards, J.A. took a different stance in relation to the findings of fact made by the trial judge. She noted that the trial judge, Madame Justice George, provided a detailed account of her findings and that such findings were premised upon careful consideration of the evidence that was before her. As such, her findings were more than a mere “impression” but, rather, were the result of a detailed assessment of the evidence adduced by both parties. Cummings-Edwards, J.A. was of the view that the court should not interfere with the trial judge's findings of fact by substituting a different conclusion on the issues of undue influence and unconscionable bargain.
[10] The CCJ, agreeing with the minority judgment of Cummings-Edwards, J.A. as to undue influence, determined that there was no sufficient basis for the Court of Appeal to interfere with the trial judge's conclusion that undue influence had been established, and so there was no need to address the issue of an unconscionable bargain. Endorsing the views of the House of Lords in Royal Bank of Scotland plc v. Etridge (No. 2) [2002] 2 A.C. 773, the Court stated that whether a transaction has been brought about by undue influence is a question of fact and the legal burden of establishing undue influence rests on the person alleging it. In this regard, the Court's focus should be an examination of the extent of trust and confidence reposed by Mrs. Feinmesser in Mrs. Narine, coupled with a consideration of the circumstances surrounding the Agreement to determine whether the transaction created a suspicion that the donative transaction was not readily explicable by the women's relationship.
[11] Once such a suspicion arose, the evidential burden then shifted to Mrs. Narine. For her to rebut this inference of undue influence, it was necessary to show that the transaction was the result of full, free and informed thought. In this regard, the Court opined that the receipt of legal advice by the donor can assist in establishing that the gift was so made. However, the nature of Mr. Akai's involvement under these circumstances was unclear since he died before the case was heard and there was no evidence of any advice given by him.
[12] Based on the application of these principles and the circumstances detailed at [2] to [6] above, the CCJ held that an appellate court could not interfere with the findings of the trial judge that (1) the relationship between Mrs. Narine and Mrs. Feinmesser was of a sufficiently influential character that, coupled with the suspicious circumstances surrounding the Agreement made at the hospital for the sale of a house valued at G$5.2 million for G$2.1 million, an inference arose that the Agreement had been obtained by undue influence; and (2) Mrs. Narine had not been able to rebut this inference by showing that the undervalue Agreement in her favour was the result of Mrs. Feinmesser's full, free and...
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