Skinner v De Grasse

• Jurisdiction: Trinidad & Tobago
• Judge: Furness-Smith, P.,C.J. Trinidad,Tobago,Collymore, C.J.,Barbados,Worley, C.J.
• Judgment Date: 09 March 1948
• Neutral Citation: TT 1948 HC 2
• Docket Number: 6 of 1947
• Court: High Court (Trinidad and Tobago)
• Date: 09 March 1948

High Court

Furness-Smith, P. ( C.J. Trinidad and Tobago); Collymore, C.J., Barbados; Worley, C.J. British Guiana

6 of 1947

Skinner

and

De Grasse

Will - Capacity to make — Soundness of mind, not particular state of bodily health — Relevant factor — Appeal — Execution of will — No specific finding by trial judge — New trial ordered.

APPEAL by Zara Skinner from a judgment of the Supreme Court of Trinidad and Tobago pronouncing against a document propounded by her as the last will and testament of John Benjamin De Grasse deceased on the ground of the incapacity of the deceased, and granting Letters of Administration of the deceased's estate to the plaintiff Ethel De Grasse the widow of the deceased.

In deciding upon the capacity of the testator to make his will, it is the soundness of the mind and not the particular state of the bodily health that is to be attended to.

Banks v. Goodfellow [1870] L.R.Q.B. 549, 566 , per Cockburn, C.J. followed.

In a claim for the propounding of a will, the trial judge made no specific finding on the question of due execution.

Held, that a new trial must be had.

1 The judgment of the President was as follows:

2 The material facts of this case are stated in the majority judgment. The document propounded as a will does not bear the signature of the supposed testator, or any writing of his, although he was an educated man. It is a home-made instrument, badly written in pencil and without legal assistance. Proof that the testator has participated in any way in its preparation and execution is wholly dependent upon the oral evidence of two Witnesses. One of these witnesses is the woman Zara Skinner Who has propounded it and is the sole beneficiary under it, and had therefore the strongest possible motive for establishing its authenticity, and the other witness Baptiste Campbell, is an old friend of hers. In addition to this, the testamentary disposition favour of Zara Skinner, which is exhibited in the document, truly reflects the moral obligation which the deceased owed to her. This circumstance might be regarded as affording strong ground for belief in its authenticity. It might equally be regarded as a powerful motive to induce a close friend of Zara Skinner to assist her in her claim to the deceased's estate. False evidence is, unhappily, regarded by litigants in this Colony as of little account, as the majority of cases in these Courts testifies; and truth, I should suppose, would rank extremely low in the order of priorities when opposed to genuine belief in the justice of a claim to inheritance. In the original document (exhibit L.B.C.1) the name Zera Skinner twice occurs, first as the named beneficiary and next as a purported witness immediately beneath the signatures of F. B. Campbell and Harold Skinner. It should be mentioned that in the printed record of this exhibit, the name is incorrectly transcribed as Zara Skinner. In the original document the first name is spelt ZERA in both places where it occurs. The true name of the defendant-appellant is Zara Skinner, and she so signs herself in her affidavit propounding the will at pages 14 and 15 of the record. This is a circumstance which suggests that the supposed signature on the document is not her own, and that suggestion, is supported by the marked similarity of hand-writing in the two names, and the marked dissimilarity with the signature of Zara Skinner both on the affidavit and the specimen which she gave in Court (exhibit Z.S.1).

3 The case for the defendant as presented at the trial was that the deceased was too ill either to write the document himself or to sign his name to it, but not too ill to dictate it and understand its contents and give his assent to it by touching the pencil when his mark was made, and this is what he did. It was the evidence of Zara Skinner, and Campbell alone which was relied upon to — satisfy the conscience of the Court that this was true. It is of great significance, and this is commented upon in the final paragraph of the judgment, that Harold Skinner, who is named in the document as an attesting witness and was available to give evidence, was not called. It was argued before this Court that the evidence of a single attesting witness was sufficient to prove clue execution, and that the onus then shifted to the other side to prove want of capacity if that was relied upon. Having regard to the character of the document propounded and to its dependence on oral testimony to establish its authenticity, and to the other circumstances to which I have already alluded, it is clear to me that the onus was upon the defendant throughout this case to satisfy the conscience of the Court that the document propounded was indeed the act of a competent testator. The omission to call an available attesting witness in such circumstances supplied an additional cause for discrediting the testimony of Zara Skinner and Campbell which was itself found by the trial judge to be unreliable in several material respects.

4 In his judgment, the learned trial judge deals with the issues of fact in this way. First he considers the supposed signature of Zara Skinner on the document, and records that “he had no hesitation in finding as a fact that the defendant (Zara Skinner) signed the alleged will as a witness attesting the signature of the testator.” If this finding is to be literally interpreted, it would appear to assume that the deceased did in fact consent to the document and that Zara Skinner signed as a witness to that consent, and this, as the majority judgment observes, is incompatible with the basic finding of the judgment to the effect that the deceased was not of sound disposing mind. Reading that part of the judgment as a whole I am convinced that this finding requires a more liberal interpretation. It seems to me that the learned judge meant that he rejected Zara Skinner's explanation of the presence of her signature there, and that, even if he was disposed to admit the will as proved and the signature of Zara Skinner as authentic, he would hold that the signature was put there for the purpose of evidencing her as an attesting witness, I do not think that he intended it to be inferred from the finding that he accepted the signature of Zara Skinner as authentic, and still less, that the signature or mark of the deceased was in fact made to the document. In this passage of the judgment the judge refers to the falsity and unreliability of Zara Skinner's evidence, and this, as it seems to me, is the only relevant and material conclusion which can be derived from it.

5 The judgment next deals with the denial by Zara Skinner that, on the morning when the deceased died, she sent messages to the solicitor, Mr. Annisette, urging him to come to the house and prepare a will for the deceased. The judge rejects Zara Skinner's evidence on that point. He further rejects her denial that, when Mr. Annisette arrived shortly before the deceased died, she asked him whether he had prepared a will for the deceased. On these material matters, the judge considered the evidence of Zara Skinner to be false.

6 After observing that the onus of proof lies on the party propounding the will, and that he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator, the judge states that he is not satisfied that the testator was capable when the alleged will was made. There then follows a number of comments upon the evidence, some of which evidently relate to the issue of capacity and others, equally clearly, do not. There is one passage relating to the evidence as to the time when the alleged will was made which I find very obscure, and I am unable to determine what conclusion of fact was intended to be derived from it. The passage which refers to Zara Skinner's omission to mention the existence of the will either to Mr. Annisette or on a subsequent occasion has certainly no relevance to the issue of the...