Sasedai Kumarie Persaud v Sherene Mongroo

• Jurisdiction: Caribbean States
• Judge: Rajnauth-Lee J,Saunders P,Burgess,Jamadar JJ
• Judgment Date: 15 December 2023
• Docket Number: CCJ Appeal No GYCV2023/001
• Court: Caribbean Court of Justice

BETWEEN

Sasedai Kumarie Persaud

Appellant

and

Sherene Mongroo

First Respondent

Zenobia Rosenberg

Second Respondent

Indranie Mulchand

Third Respondent

[2023] CCJ 16 (AJ) GY

Before:

Mr Justice Saunders, President

Mr Justice Wit

Mme Justice Rajnauth-Lee

Mr Justice Burgess

Mr Justice Jamadar

CCJ Appeal No GYCV2023/001

GY Civil Appeal No 127 of 2016

IN THE CARIBBEAN COURT OF JUSTICE

APPELLATE JURISDICTION

ON APPEAL FROM THE COURT OF APPEAL OF THE CO-OPERATIVE REPUBLIC OF GUYANA

Will — Contentious probate proceedings — Testamentary capacity of testator — Suspicious circumstances surrounding making of will — Acknowledgement by testator of his signature on will — Presumption of due execution — Establishment of due execution in absence of presumption — Expert evidence as to testator's signature — Grant of probate in solemn form of copy of will — Two conflicting opinions in Court of Appeal — Third opinion in Court of Appeal supporting both conflicting opinions — Whether conflicting opinions of Court of Appeal on certain issues result in defective judgment on those issues — Court of Appeal overturning trial judge's findings of fact — Distinction between findings of primary fact and inferences drawn from primary facts — Wills Act, Cap 12:02, s 4.

Cases referred to:

Banks v Goodfellow [1861-73] All ER Rep 47; Campbell v Narine[2016] CCJ 07 (AJ) (GY), (2016) 88 WIR 319; Colling, Re[1972] WLR 1440; Commissioner of the Guyana Geology and Mines Commission v Diamond Quarry Inc [2022] CCJ 11 (AJ) GY, GY 2022 CCJ 6 (CARILAW); Croft v Croft(1865) 4 Sw & Tr 10, 164 ER 1418; Hontestroom, SS (owners) v SS Sagaporack (owners)[1927] AC 37; Housen v Nikolaisen[2002] 2 SCR 235; Loosley v Powell[2018] NZCA 3, 20 ITELR 832; Moonan v Moonan(1963) 7 WIR 420 (TT CA); Vinnicombe v Butler(1864) 3 Sw & Tr 580, 164 ER 1400; Walsh v Ward[2015] CCJ 14 (AJ) (BB), (2015) 87 WIR 101; Webb, Re[1964] 2 All ER 91; Wilson v Lassman[2017] EWHC 85 (Ch); Woodhouse v Balfour(1887) 13 PD 2.

Legislation referred to:

Guyana - Caribbean Court of Justice Act, Cap 3:07, Court of Appeal Act, Cap 3:01, Family and Dependants Provision Act, Cap 12:24, Wills Act, Cap 12:02.

Treaties and International Materials referred to:

Agreement Establishing the Caribbean Court of Justice (adopted 14 February 2001, entered into force 23 July 2002) 2255 UNTS 319.

Other Sources referred to:

D'Costa R, Teverson P, Synak T, Tristram and Coote's Probate Practice (31st edn, LexisNexis 2015); Gibbens R D, ‘Appellate Review of Findings of Facts’ (1992) 13 Advoc Q 445; Halsbury's Laws of England (3rd edn, 1962) vol 39; Halsbury's Laws of England (5th edn, 2021) vol 102; Nunez-Tesheira K, Non-Contentious Probate Practice in the English Speaking Caribbean (2nd edn, The Caribbean Law Publishing Co 2004).

Appearances

Mr Hari Ramkarran SC, Mr Nikhil Ramkarran and Mr Kamal Ramkarran for the Appellant

Ms Shaunella Glen, Ms Tamara Khan and Ms Paula Jones-Nicholson for the First Respondent

Mr C A Nigel Hughes, Ms Savannah Barnwell, Ms Sophia Findlay, Ms Edrianna Stephen and Mr Michael Jagnanan for the Second Respondent

Mr C V Satram, Mr Mahendra Satram and Mr Ron Motilall for the Third Respondent

Rajnauth-Lee J ( Saunders P and Burgess and Jamadar JJ concurring)

Rajnauth-Lee J

Introduction

1 This appeal raises important issues in Guyanese contentious probate law. It explores, among other things, the issues of testamentary capacity, compliance with the requirements for due execution of a will under the Wills Act1, and whether the trial judge ought to have granted probate in solemn form of the copy of the will tendered into evidence in the circumstances of this case. An overarching issue is

whether having regard to the evidence presented to the trial judge, the Court of Appeal should have reversed certain findings of fact made by the trial judge

2 The parties to this appeal are the appellant, Sasedai Kumarie Persaud (Sasedai or Sasedai Persaud) who is the business manager, executor and principal beneficiary under the will of Yusuf Mongroo (the deceased or Mr Mongroo). She had been employed in the deceased's business since 1999. The first and second respondents are Sherene Mongroo (Sherene or Sherene Mongroo) and Zenobia Rosenberg (Zenobia or Zenobia Rosenberg), the two daughters of the deceased, who challenged the will. The third respondent is Indranie Mulchand (Indranie or Indranie Mulchand) who the trial judge found, was the common law wife of the deceased, and who also benefitted under the deceased's will. At the trial, evidence was also led from Nyron Dexter Lathuillerie, who claimed to be the son of the deceased, but who did not join Sherene and Zenobia in challenging the will.

3 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 called the 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.

4 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 was the subject of the 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, who was also appointed executor of the deceased's will;

• 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.

5 The children of the deceased, and in particular, his two daughters, Sherene Mongroo and Zenobia Rosenberg, derived no benefit under the Guyana will. Nyron Dexter Lathuillerie also received no benefit under that will.

6 Included in the Record of Appeal before this Court were two other wills, one dated 6 August 2010 disposing of the deceased's assets situated in the Cayman Islands (the Cayman Islands will). The other will was executed on 12 August 2010 and dealt with the deceased's assets situated in Barbados (the Barbados will).

7 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, George J 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.

8 This Court has come to the conclusion that the trial judge was correct to uphold the validity of the Guyana will and to order that a copy of the Guyana will be admitted to probate in solemn form. The consent order granted by this Court on 3 May 2023 whereby it was ordered that Sherene, Zenobia and Indranie (the Respondents) shall not distribute the assets of the deceased pending the determination of this appeal is to be discharged.

The High Court Proceedings

9 On 12 October 2010 Sherene Mungroo commenced proceedings against Sasedai Persaud and Indranie Mulchand contesting the validity of the Guyana will on various grounds which included forgery, non-compliance with the Wills Act, suspicious circumstances, and undue influence. On 1 April 2011, Sasedai Persaud filed a defence and counterclaim seeking among other things that the court pronounce in solemn form for the last will and testament of the deceased dated 12 August 2010. On 18 November 2010, Indranie Mulchand filed a separate defence and counterclaim, asserting among other things, that claims made by her in a separate action, High Court Action No 669 S/A of 2011, under the Family and Dependants Provision Act, 2 were entitled to priority of hearing and adjudication to the claim herein made by Sherene Mungroo. Further, by order of George J dated 4 February 2013, Zenobia Rosenberg was added as a plaintiff to the action commenced by Sherene. She filed a statement of claim on 30 May 2013, making similar allegations to those made by Sherene. Further and consequential pleadings were filed by the parties in this matter.

10 In her written judgment delivered on 16 December 2016, the trial judge expressed the view that the case turned on the facts and the credibility of the witnesses. Several witnesses, including the parties to the action, gave evidence before the trial judge. 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.

11 The sequence of events leading up to the making of the Guyana will commenced with instructions allegedly given by the deceased to Mr Vidyanand Persaud, Attorney-at-Law (Mr Persaud) for its preparation. The trial judge accepted and relied heavily on the testimony of Mr Persaud, and of Dr Rohan Jabour (Dr Jabour) in arriving at findings of fact concerning the preparation and execution of the Guyana...