The Caribbean Court of Justice (CCJ) delivered its judgement in the Guyanese case of Sasedai Kumarie Persaud vs Sherene Mongroo, Zenobia Rosenberg, and Indranie Mulchand on Friday, setting aside the decision of the Court of Appeal (COA) and restoring the judgement of the High Court.
In this appeal, Yusuf Mongroo, an 83-year-old Guyanese businessman, 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 on August 15, 2010, and was challenged by his daughters, Sherene Mongroo and Zenobia Rosenberg, who did not receive any benefit under the will. His cause of death was given as cerebral edema.
Yusuf Mangroo owned Horseshoe Racing Service which is located at Commerce and Longden Streets, Georgetown. Reports stated that he operated a similar business in Barbados.
Sherene Mongroo’s main contentions were that her now-deceased father did not sign the will and that he was incapable of understanding what he was doing because of a medical condition that struck him just before the will was made, reports stated.
In the High Court, the trial Judge, Roxane George, SC, now the Chief Justice, found that the will of 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 appealed to the CCJ. In a judgement authored by CCJ Justice Maureen Rajnauth-Lee, the court first considered whether conflicting opinions delivered in the Court of Appeal, on certain issues, resulted in a defective judgement on those issues, that should be set aside.
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 judgement that ought to be set aside. The CCJ was, therefore, able to hear the case on its merits and proceeded to do so.
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 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, the 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 trial Judge also found that the daughters had not established that they enjoyed a close relationship with their father.The CCJ, therefore, held that the evidence accepted by the trial Judge provided a sufficient basis on which she could have found that Mongroo 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 has the signature of the person making the will and the witnesses.
Consequently, the presumption of due execution could not be applied. However, the CCJ 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 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 CCJ concluded that the trial Judge considered the evidence of the two expert witnesses who examined the will. Therefore, the regional court found that the trial Judge was correct to find that the signature on the will was that of Mongroo.
Sherene Mongroo and Rosenberg were ordered by the CCJ to pay Persaud and Mulchand the following costs: costs of this appeal calculated in accordance with Rule 17.15 (3) (b) of the Caribbean Court of Justice (Appellate Jurisdiction) Rules 2021; costs in the Court of Appeal to be assessed; and costs in the High Court as ordered by Chief Justice George. No order as to costs was made against Mulchand.
The matter was heard by CCJ President Justice Adrian Saunders, and CCJ Judges Jacob Wit, Maureen Rajnauth-Lee, Andrew Burgess, and Peter Jamadar.
Senior Counsel Hari Ramkarran and Attorneys-at-Law Nikhil Ramkarran and Kamal Ramkarran appeared for Persaud, while attorneys Shaunella Glen, Tamara Khan and Paula Jones-Nicholson appeared for Mongroo.
Meanwhile, attorneys Nigel Hughes, Savannah Barnwell, Sophia Findlay, Edrianna Stephen, and Michael Jagnanan appeared for Rosenberg, and attorneys CV Satram, Mahendra Satram and Ron Motilall represented Mulchand.