Dookhran v Ramsahai
| Jurisdiction | Trinidad & Tobago |
| Judge | Mendonca, J.A. |
| Judgment Date | 18 February 2011 |
| Neutral Citation | TT 2011 CA 4 |
| Docket Number | Civil Appeal No. 123 of 2007 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 18 February 2011 |
Court of Appeal
Mendonca, J.A; Jamadar, J.A.; Bereaux, J.A.
Civil Appeal No. 123 of 2007
Mr. S Roopnarine and Mr. T. Dassayne instructed by Ms. H. Lochan for the appellant
Mr. C. Sinanan and Mr. F. Mohammed for the respondent
Will - Donatio mortis causa — Validity of will contested — Admission that will not executed in presence of two witnesses — Claim that doctrine of donatio mortis causa applies — Whether doctrines applicable in circumstances.
At the conclusion of the oral arguments in this appeal, it was dismissed with costs to be taxed and paid by the appellant to the respondent. This is the Court's full reasons for so doing.
This is an appeal from the judgment of the trial judge dismissing the appellant's counterclaim that the deceased made a valid donatio mortis causa of his property at No. 13 Top Street, Corinth Village, St. Madeline (the property) to the appellant. The relevant factual background can be briefly summarized.
On the 9th day of January 2001, Roopnarine, the deceased, who was in his seventies attended the office of Mr. Seedansingh, attorney-at-Law, where he placed his thumb print on a will appointing the appellant, who was his sister-in-law, executrix of his estate and bequeathed all his property real and personal to her.
The respondent contested the validity of the will on the ground that the will had not been executed in the presence of two witnesses. Before the matter was resolved the respondent passed away and the action was continued by her son Premanand Jaikaran, who was substituted as plaintiff in this action by order dated 31st January, 2007.
Although the will bore the signatures of two attesting witnesses, at the time of execution only one named witness, Zorina Nanan, law clerk in the law offices of Seedansingh, attorneys-at-law, was present when Roopnarine placed his thumb print on the will. The second witness, Brenda Harewood, testified that she did not attend the office of any attorney-at-law to sign the will. She also testified that she neither witnessed the attesting of the will by Zorina Nanan nor did she see Roopnarine put his fingerprint on it.
The appellant conceded before the trial judge that the will was not executed in the presence of two witnesses as required by section 42 of the Wills and Probate Act, Chap. 9:03 and was thus invalid.
In order to establish her right to the aforementioned property the appellant relied on her counterclaim that the doctrine of donatio mortis causa applied. The appellant contended that a valid donatio mortis causa had been created as the gift was made in contemplation of death, conditional on death and the deceased had parted with dominion over the subject matter of the gift.
The judge accepted the evidence of the appellant that prior to his death she provided household assistance to Roopnarine twice per month. It was also undisputed that the deceased and the appellant visited the offices of various public utilities including the Water and Sewerage Authority and Trinidad and Tobago Electricity Commission following the execution of the will. The judge also accepted that Roopnarine had placed the appellant's name on his two bank accounts for the purpose of withdrawing cash to run his household.
It was undisputed that Roopnarine had been engaged in painting his house mere days before his death. It was accepted that on the 17th June, 2001, a few days before his death on June 21st, 2001, Roopnarine gave the appellant keys to his external gate, his house and wardrobe. According to the evidence, the wardrobe was where the deceased kept all his documents and money. The appellant did not allege that the delivery of the keys was accompanied by any statement of intention.
The judge stated that for there to be a valid donatio mortis causa three requirements must be satisfied, namely (i) the gift must have been made in contemplation of death, (ii) the gift must be made on the condition that it is to be absolute and perfected only on the donor's death being revocable until that event occurs, and (iii) there must be delivery of the subject matter of the gift or the essential indica of title thereto.
As to the first requirement the judge focused on the keys that were delivered to the appellant. The judge noted that there were no words at the time of delivery to indicate the intention of the deceased. However the judge stated that when it is considered that the deceased was in his 70s at the time of the delivery of the keys, “along with the fact that shortly before that time he had executed his will and the fact that he died a few days later, it is, in my view reasonable to infer, in the absence of evidence to the contrary, that the deceased delivered the keys in contemplation of death”.
The judge however stated that the appellant encountered greater hurdles in establishing that the deceased intended to impart an absolute inter vivos gift which would be perfected upon his death. The judge was of the view that delivery of the keys must be viewed in the context of the will which the deceased purported to execute a few months earlier. She stated that “at the time of the execution of the will up to the time of his death, the deceased would have expected his bequest by will to take effect upon his death and upon the grant of probate”. The making of the will in this case by the deceased was inconsistent with the principle of donatio mortis causa. The judge explained that:
“The two forms of gift are however distinguishable when one considers the time of parting with dominion over the gift. In the case of a gift by will, the beneficiary does not acquire dominion over the property until there has been a grant of probate following the testator's death and the gift is conveyed to the beneficiary by the personal representative of the testator. In the case of a donatio mortis causa, the donor parts with dominion upon delivery of the gift or the indica of title thereto….
The fact that the deceased executed a will indicates that dominion over his property would pass to the defendant upon his death and through the will. In such event, the beneficiary would acquire absolute title under the executor. This is of course inconsistent with an intention to pass dominion over the house by delivery of the keys to the defendant in contemplation of death. The presence of the will negatives an intention to make a donatio mortis causa, by which the donee acquires absolute title upon the donor ‘s death not under but against the executor.”
As regards to the third requirement the judge stated that:
“The presence of a purported will, together with the absence of any statement indicating an intention to pass dominion to the donee, in my view, is consistent with an intention to pass possession rather than dominion of the subject property. It is likely that the deceased gave the keys to the defendant, regarding her as the steward rather than the master of his property”.
The judge therefore concluded that the appellant had not established a valid donation mortis causa and dismissed the counterclaim.
The appellant now appeals to this Court. The appellant contends that the findings of the judge are against the weight of the evidence. The appellant submits that the judge failed to draw the proper inferences in favour of the appellant. It is also submitted that the judge erred in law since she took the erroneous view that for there to be a valid donatio mortis causa the delivery of the gift must be accompanied by contemporaneous words indicating the surrender of dominion to the donee.
Counsel for the respondent on the other hand argued that the judge's decision was the correct one. He did not challenge the finding by the judge that the keys were delivered in contemplation of death but contends that the only conclusion that can be drawn from the evidence is that the deceased intended a testamentary gift where dominion over his property would pass through his will.
“Donatio mortis causa” is a Latin expression that translates literally as “gift by cause of death.” It has been suggested that a rough translation might simply be “death bed gift” (see Parry v. Clark, The Law of Succession (11th edition) (at para. 6-42). The legal nature of the donatio mortis causa was explained by Buckley, J. In re Beaumont [1902] 1 Ch. 889 (at pp 892893) where he stated:
“A donatio mortis causa is a singular form of gift. It may be said to be of an amphibious nature, being a gift which is neither entirely inter vivos nor testamentary. It is an act inter vivos by which the donee is to have the absolute title to the subject of the gift not at once but if the donor dies. If the donor dies the title becomes absolute not under but as against his executor. In order to make the gift valid it must be made so as to take complete effect on the donor's death.”
A donatio mortis causa is therefore a gift made by the donor to the donee during the lifetime of the donor. It differs from an outright gift made inter vivos in that the donee is to have absolute title to the gift on the death of the donor and not immediately. It is revocable until the death of the donor. It differs from a testamentary gift in two respects which are material to this appeal. First, the title of the donee in the case of a donatio mortis causa takes complete effect on the death of the donor. The gift therefore becomes absolute “not under but as against his executor.” Secondly, a donatio mortis causa requires the donor to part with dominion over the subject matter of the gift before his death which is not the case with a will.
In Sen v. Headley [1991] 2 All E.R. 636 Nourse, L.J. in giving the judgment of the Court of Appeal stated (at p. 639), that apart from the question of whether a gift is capable of passing by way of a donatio mortis causa there are...
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