Chamroo v Rookman and Satnarine

• Jurisdiction: Trinidad & Tobago
• Judge: Wooding, C.J.,McShine, J.A.,Phillips, J.A
• Judgment Date: 25 October 1968
• Neutral Citation: TT 1968 CA 90
• Docket Number: Civ. App., No. 79 of 1969
• Date: 25 October 1968
• Court: Court of Appeal (Trinidad and Tobago)

Court of Appeal

Wooding, C.J.; McShine, J.A.; Phillips, J.A

Civ. App., No. 79 of 1969

Chamroo

and

Rookman and Satnarine

Appearances:

Mr. Rigsby for the appellant.

Mr. O. Permanand for the respondents.

Inheritance and succession - Wills — Family provision

JUDGMENT OF THE COURT:

1 Before dealing with the facts of this case the court wishes to call attention to order LVIB of the rules of the Supreme Court which governs applications made under the Family Provision in the Wills and Probate Ordinance, Ch. 8 No. 2. It is plain from a reading of the rules under that order that while evidence on any such application shall be by affidavit verifying a statement of the facts and matters upon which any party relies, as prescribed by r. 7, nevertheless as provided by r.9 that –

“The court or a judge may require evidence in regard to the court or judge considers to be relevant to the application and may direct any party to the proceedings or any person on whom notice of the hearing of the application and give evidence orally or to be cross-examined on any affidavit made by him.”

2 In our view, disputed issues of fact can only be properly resolved on viva voce evidence and no attempt should be made to resolve them on affidavit evidence only. It is further to be noticed that r. 11 requires that –

“…… the application shall be set down in the list for hearing in court:

3 And this is subject only to (a) the proviso –

“that if the judge hearing the application is of opinion that in the interests of justice the evidence or any part of it should not be given in open court, the judge may adjourn the hearing or any part of it into chambers”

4 and (b) the discretion conferred by r.12 which provides that on any application in which it appears that the interests of an infant or other person under disability are affected the court or a judge, may, if thought fit, direct or dispose the matter in chambers. It is consequently of importance to bear in mind that proceedings such as these ought normally be heard and determined in open court and not in chambers, despite the fact that the application is one which is made by originating summons.

5 We mentioned these matters because we would wish to see the procedure prescribed by the rules duly observed in future. No point however was of them on this appeal, and we do not propose ourselves to make any such point in our decision because we do not consider that at the end of the day the result could be otherwise than it was. But we would hope that in future the procedure will observed as the rules require.

6 Our attention was called to a decision of Megarry, J. in In re Goodwin (1968) 3 W.L. R. 558. In his Judgment at P.561, Megarry, J. questions the principles which had been laid down In re Pugh, and followed by Wynn-Perry, J. in In re Inns, that on an application of this kind the court must consider whether the testator acted unreasonably. It is important to bear in mind that this question of principle was raised not on the act as it stood in 1938, the language of which was copied in our ordinance, but rather on the change of language in an act of 1952 which was replaced and repeated in an act of 1966. And it is to be observed that what the learned judge said is that “the question then became whether the court ‘is of opinion that the disposition of the deceased's estate …… is not such as to make reasonable provision for the maintenance of the dependant in question” and that “the statutory language is thus wholly impersonal”.

7 It my very well be that having regard: to Megarry, J's view, if it is accepted as being correct, the question may later arise whether the traditional view taken of the 1938 enactment, and consequently of our ordinance, ought to be amended. But at present the situation is that there has been a consistent line of authority, both here and (until Megarry, J's dictum) in England, that it is for the court to determine whether it was unreasonable for the testator not to have made any, or any larger, provision than he did in his will for the applicant dependant. Indeed, this court in Clementina Thomson v, Jessie Roach and Pamela Roach, Civ. App. No. 75 of 1967,...