Ramcoomarsingh v Administrator General (Trinidad and Tobago) [2002] UKPC 67 (16 December 2002)

	ADVANCE COPY

	Privy Council Appeal No. 13 of 2001

Lutchman Ramcoomarsingh	Appellant
	v.
The Administrator General	Respondent

	FROM

	THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 16th December 2002
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	Present at the hearing:-
			Lord Slynn of Hadley
Lord Steyn
Lord Hobhouse of Woodborough
Lord Millett
Lord Rodger of Earlsferry
		  	[Delivered by Lord Slynn of Hadley]
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1. 	Mr James Harper died on 8th February 1985.  On 31st January 1986 his sister Miss Harper applied for probate as the sole executrix of her brother’s will said to have been made on 13th March 1984.  The appellant entered a caveat against the grant of probate of that will.  By that will Mr Harper left all his properties and monies in an account at Barclays Bank to Miss Harper “for and during the term of her natural life and after death to the said Sister Maude Harper absolutely”.  By an application dated 9th March 1986 the appellant sought probate of a will of Mr Harper which was said to have been made on 11th April 1978.  The executors were the appellant and Mr Harper’s sister.  Mr Harper left all his property whether real or personal “to my sister the said Maude Harper for and during the term of her natural life and after her death to [the appellant] absolutely”.
2. 	By writ dated 13th October 1987 Miss Harper sought to have the 1984 will established, joining the appellant as defendant.  The appellant by way of defence claimed that the 1984 will was obtained by fraud: the signature on the will was not that of Mr Harper nor was the signature that of a witness Mr Abraham. Moreover it was said that Mr Harper did not know or approve of the contents of the will or give instructions for it to be made.  The appellant thus counterclaimed for the court to pronounce against the 1984 will and in favour of the 1978 will.  

3. 	By an amendment to the statement of claim Miss Harper claimed that the 1978 will was not the last will of her brother, but that, if it was, Mr Harper was not able to exercise an independent judgment because he was not separately advised.  This the appellant denied by an amendment to his defence.  Miss Harper died in 1998 aged 98 years and the Administrator General was substituted for her in the conduct of the proceedings by an order of the Chief Justice dated 21st June 1999.

4. 	At the trial evidence was given by Miss Harper, the appellant, the appellant’s clerk Mr Witphilco de Freitas and a document examiner Mr Robert Fawcett.  

5. 	Hamel Smith J reviewed Miss Harper’s evidence as to how and when she said the will was typed and the examiner’s evidence as to inconsistencies between the signature on the will and the specimen signatures of Mr Harper which were produced.  He took into account that “the deceased was an experienced law clerk and one who had some knowledge of the preparation of wills” whereas “The copying used was that of an amateur and not that of a law clerk with some experience”.  His conclusion was “I have not a shadow of doubt that the deceased did not sign the `84 Will.  I am satisfied from the evidence of the expert which is amply fortified by the highly suspicious circumstances surrounding the `84 Will.  I am also of the view that the plaintiff has not established due execution”.  Accordingly the learned judge pronounced against the 1984 will.  That conclusion was challenged on appeal but the Court of Appeal unanimously rejected the appeal on that ground.  The matter has not been raised before the Board and it is not necessary to say more about it.

6. 	As to the 1978 will the judge found that from 1962 Mr Harper had been a close friend of the appellant.  He had assisted the appellant in developing his practice as a solicitor and had prepared writs and other documents for the appellant to sign.  “I formed the impression that the deceased had considerable experience in the law, not only in Court work but in the preparation of wills … a law clerk who invariably would know as much if not more than most practitioners”.  When Mr Harper’s wife died in 1974 the appellant went to see him frequently and got for him necessary medical assistance and medicines.  Their relationship was close – “one akin to father and son”.  The appellant seems to have been the one who suggested that Miss Harper move in to live with her brother on his wife’s death.  The judge accepted that between 1974 and 1978 Mr Harper had many times told the appellant that he wished to leave his entire estate to the appellant and that the appellant had consistently refused to accept that this should be done.  He told Mr Harper that the latter needed to provide for his sister.  The judge “unreservedly” accepted the appellant’s evidence which clearly showed that the deceased was bent on leaving him an interest notwithstanding the many rebuffs he had received from the appellant.

7. 	The judge obviously regarded this background as important in his assessment of the events of 11th April 1978.  On that day Mr Harper came to the appellant’s office and said that he had come to make his will repeating his wish to leave his estate to the appellant who told him again that he had a sister to look after and “rebuked” Mr Harper.  In evidence the appellant said he wanted nothing for himself and asked “what about Maude?”.  

8. 	The appellant left his office at 12.30 p.m.  What happened then is that Mr Harper dictated the 1978 will to Alkida Hosein who typed it.  Mr de Freitas was present throughout but it seems clear that neither he nor Miss Hosein had any part in drafting the will or in advising Mr Harper as to what he should do.  Mr de Freitas read the will to Mr Harper after it was typed and then Mr Harper read it himself.  There was evidence that Mr Harper had in his hand a piece of paper that was not available at the trial and there is no finding as to what it contains.  When the appellant got back at 2.00 p.m. he asked if Mr Harper had made a will.  He was given the original and a copy which he put away.  Later at Mr Harper’s house he said “you got your wish at last”.  

9. 	The judge made important findings on the weight of the evidence he had heard.  “I can come to no other conclusion but that he in no way influenced the deceased in leaving an interest in the estate to him”.  Recognising that the evidence was all on one side and that he had to scrutinise it carefully, he had “no hesitation in believing the evidence of [the appellant]”.  I am of the view that he acted in a proper manner when he realised that he could be the recipient of a gift under the deceased’s Will.  He never encouraged the deceased to make the will in such a manner nor was he instrumental in preparing it”, even if he allowed the will to be prepared in his office.  Moreover in a way his advice to Mr Harper was being followed since instead of leaving the whole estate absolutely to the appellant Mr Harper had left a life interest to his sister and she took all the monies in their joint account at the bank.  “I am of the view that the will contains the real intention of the deceased and no one else’s”.  He accordingly upheld the validity of the will.  

10. 	In the Court of Appeal the Chief Justice recited the facts and said that there was difficulty in knowing what was Miss Harper’s real ground of attack.  It may have been that there was undue influence but that ground was not argued and in any event it could be dismissed summarily since it was conceded that the relationship between solicitor and client, which Miss Harper denied but which the judge had found to exist, did not give rise to a presumption of undue influence and “there was certainly no evidence of any actual influence being exercised over the testator in the framing of his will”.  The main ground, however appeared to be that there were such suspicious circumstances surrounding the preparation and execution of the will that the court could not be satisfied that the testator knew and approved its contents or put another way that the onus was on the appellant to prove the righteousness of the transactions by dispelling any such suspicion.  The Chief Justice stressed that the judge had made clear the findings of fact in the appellant’s favour.  He accepted that the court looked “with the gravest suspicion on a will which has been prepared for his client by a solicitor who takes a substantial benefit under it” but he found that there was no evidence to support an inference that the will had been “inspired” by the appellant.  There was nothing sinister in the fact that on returning from lunch he had asked if Harper had prepared his will.  It may have been a breach of the solicitor’s rules of conduct in that he did not insist that independent advice be obtained but this does not mean that the will was invalid.  In this case Harper knew who he could go to if he needed legal advice – “I have little doubt that the idea of his doing so would have seemed as incongruous to Harper as it probably did to the appellant”.  After all Harper was an experienced law clerk.  On the judge’s findings there was only one answer to the question whether the testator was aware of the contents of the will and whether it expressed his wishes.  The Court of Appeal could not overturn the judge’s findings.
11. 	Permanand JA reached a different conclusion.  Having recited counsel’s arguments she stressed that it was essential that the testator should have known and approved of the contents of the will at the time of its execution.  Here although the will was duly executed “in my mind there appears to be some cloud of doubt with regard to the righteousness of the transaction and accordingly whether the testator approved the contents”.  She considered that, although the appellant did not actually prepare the will, since he knew of the disposition to be made and that he was a recipient of Mr Harper’s estate he should have insisted on the will being prepared by another solicitor.  Further there was clear evidence that the will did not contain the real intention of the testator.  She was suspicious of the fact that on return from lunch he had asked whether the will had been prepared and it seems she was suspicious of inconsistencies in the evidence of Mr de Freitas and the appellant.  The judge in her view should have taken account of the fact that the appellant was Mr Harper’s solicitor and that Mr Harper had formerly been his clerk.  Consequently the judge should have held that “the deceased was required to have independent advice before making his will.  On the whole of the evidence I find that the doubt and suspicion with which I was bound to observe have not been removed, it has not been affirmatively established, as [the appellant] was bound to establish it, that the deceased knew and approved of the contents of his Will”.  Accordingly she refused as probate of the 1978 will. 

12. 	Hosein J agreed that the appeal should be allowed.  He thought on the evidence of Mr de Freitas that the testator when he went to the clerk and the secretary did not have a will prepared nor did he prepare one when he went to see the appellant before going to Mr de Freitas.  Like Permanand JA he asked why the secretary had not been called and where were the instructions for the preparation of the will.  There is “an unresolved mystery as to who prepared it”.  He too was suspicious of the fact that no note was produced as to the appellant’s advice to Mr Harper and found it strange that there was no recommendation of independent advice and that the appellant should have said “you got your wish at last”. The findings of fact were not in issue – where the judge went wrong was in failing “to appreciate the effect of the evidence given by de Freitas and [the appellant]”.  He failed to draw the proper inferences from the facts surrounding the preparation of the 1978 will.  The failure to call the witness and to produce the instructions “left the suspicion surrounding its preparation and execution intact”.  The appellant should have told Mr Harper of the need for independent legal advice.  “The primary purpose of such advice is that he must be made aware of the claims of blood relations upon his bounty and it is expected of him to make adequate provision for them therein.  If after being so advised he chooses to ignore such advice and to prepare a Will as he had originally contemplated, then he is free to do so”.  There was here a real failure to ascertain, as independent legal advice would have established, that Mr Harper had a daughter.  There was nothing to support the idea that their being close friends, as well as being solicitor and client, absolved the solicitor from requiring his friend to seek independent advice.  On the contrary the duty to remove any suspicion was greater and here the duty was not performed.

13. 	The Board has been referred to a number of statements for the principle said to be applicable to a situation where a client wishes to leave property to a solicitor, cases which were relied on by the majority judges in the Court of Appeal.  Thus in Brown v Fisher (1890) 63 LT 465 it was said that:
“The court is to approach with suspicion the consideration of a will procured and propounded by a person taking a large benefit thereunder, although the will may have been prepared by a solicitor, and though fraud is not pleaded by the person opposing the will and where there was no testamentary incapacity on the part of the testator or the witness.”

14. 	In Barry v Butlin (1838) 2 Moo 480, 482 Baton Parke said that there were two rules.  The first was that the person preparing a will “must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator”.  
“The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased”.

The first of these principles was more recently followed in Alvarez v Chandler [1962] 5 WIR 226.

15. 	In Tyrell v Painton [1894] p 151 at 157, Lindley LJ said that where circumstances exist which excite suspicion the onus is on the person propounding the will to prove that the testator “knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the Will”.

16. 	But as Lord Hatherley stressed in Fulton v Andrew (1875) LR 7 HL 448, 469 there is no absolutely rigid rule that if a testator of competent mind has had his will read over to him that further injury is shut out but where that is done “very strong evidence is required in opposition to it in order to set aside any instrument so executed”.  As Lord Cairns LC put it, at p 463, the duty is to bring home to the mind of the testator the effect of his testamentary act. In Cordery on Solicitors 8th Ed (1988) p 18 affirmative proof of the testator’s knowledge and approval can be “most satisfactorily furnished by showing that the will was read over to the testator or is in accordance with instructions proceeding from him”.

17. 	It seems to the Board that the approach to be followed is that stated by Viscount Simonds in Wintle v Nye [1959] 1 WLR 284, 291 as agreed to by other members of the House.  Approving the judgment of Parke B in Barry v Butlin (supra) he added:
“It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it.  But that fact creates a suspicion that must be removed by the person propounding the will.  In all cases the court must be vigilant and jealous.  The degree of suspicion will vary with the circumstances of the case.  It may be slight and easily dispelled.  It may, on the other hand, be so grave that it can hardly be removed.”

18. 	These authorities, and many others to which it is not necessary to make reference since they are on similar lines, make it clear that where a person is in a fiduciary relationship with another who is intending to make a will, that person if he prepares or is closely involved in the preparation of the will or informing the testator’s intentions must if the will is challenged satisfy the court that the testator knew and understood what he was doing and that the will has given effect to his intentions.  The possibility of undue influence leading to the provision of such a benefit for the person, whether a solicitor or not, but particularly a solicitor, must be ruled out.  The simplest way of avoiding the conclusion that there has been such influence is to ensure that an independent legal adviser is consulted by the testator or at any rate to give a clear and recorded opinion that such advice be obtained.  But the statement in Rhodes v Bate [1886] 1 Ch App 252, 257 upon which Permanand JA relies that the persons by whom the benefits have been conferred must be shown to have “had competent and independent advice in conferring them” goes too far.  It is simple and conclusive but other methods showing that the will contains the intention of the testator and that he knew and understood what he was doing may be sufficient to remove the suspicions which have arisen.

19. 	In the present case, if only to avoid this litigation, it would have been wise for the appellant to have arranged for or firmly encouraged the obtaining of independent legal advice and to have recorded such encouragement.  But if it is clear that the testator understood what he was doing then other methods of showing that there was no vitiating undue influence can be relied on.

20. 	In this regard, even though the Board must look critically at the evidence, it is important for an appellate court to bear in mind the findings of fact of the trial judge and the implications he drew from them on the basis of his opinion as to the credibility of the witnesses.  This is so even allowing for the fact that he did not hear the secretary or have the piece of paper held by Mr Harper or any other instructions from the appellant.

21. 	It seems to their Lordships that the judge was well entitled to find and the learned Chief Justice right to accept on the judge’s findings, that Mr Harper was fully aware of what he was doing.  He had had many years experience as a “kind of law clerk”.  Whether or not he was the only person involved in formulating the testamentary instructions it is plain that Mr Harper dictated his will to the typist.  He had made it plain that he wanted the estate to go to the appellant.  On the judge’s findings of fact he had been throughout reminded by the appellant of the need to provide for the care of his sister after his death.  It is almost impossible to think that Mr Harper did not understand the difference between the giving of the life interest to his sister and the final disposal to the appellant and indeed this to some extent achieved the effect of the advice which he had been frequently given by the appellant.  

22. 	Their Lordships thus consider that the appellant has established that this will was not only properly executed but also that it was made with the full understanding of the testator as to what he was doing.

23. 	It is therefore necessary to consider whether probate should be refused because of the undue influence of the appellant over Mr Harper, no suggestion of fraud being made.  

24. 	It is to be noted that although the court must be satisfied as to this there is no presumption of undue influence arising here as there is in the case of a gift inter vivos between persons in a fiduciary relationship (Parfitt v Lawless (1872) LR 2 P & D 462 per Lord Penzance and Craig v Lamoureux [1920] AC 349, at pp 356-357 (PC)).

25. 	The majority in the Court of Appeal in this case pointed to what they saw as suspicious circumstances to which reference has already been made.  It seems to their Lordships that reliance by the judges of appeal on some of these is not well founded.  There is really nothing to suggest that the piece of paper held by Mr Harper originated with or was seen by the appellant.  Nor is there anything suspicious or sinister in the fact that when he came back from lunch the appellant asked if Mr Harper had made a will since he was told that he was going to make a will.  This issue between them had been around for a long time.  The appellant had been seeking to stop Mr Harper from making a will and even on the very morning the appellant had told Mr Harper that he did not wish to receive the estate and that Mr Harper should look after his sister. Mr Harper knew and the appellant did not know in 1978 that the latter had a daughter but in view of his close relationship with his sister it seems unlikely that if he was to be deterred from making the will in favour of the appellant it would not have been because of the existence of the daughter, if the needs of the sister were not sufficient to deter him.

26. 	But these in the end are relatively peripheral matters.  The core question is whether it has been shown that there was or was not undue influence by the appellant over Mr Harper to persuade him to leave the estate to the appellant subject to a life interest to his sister.  The judge was quite satisfied that there was no undue influence.  The will was not prepared by the appellant though the latter accepts responsibility from the fact that the will was typed by his staff in his office.  There was a long saga of the appellant telling Mr Harper not to do it and that he did not want the estate but that it should go to the sister.  From the date of the 1978 will to his death in 1985 there is nothing to suggest that Mr Harper felt that he had been persuaded contrary to his interest or led reluctantly to make the 1978 will.  The judge put the matter strongly “in the evidence he has given I can come to no other conclusion but that he in no way influenced the deceased in leaving an interest in the estate to him.  On the contrary his evidence, and I accept it unreservedly, clearly showed that the deceased was bent on leaving him an interest notwithstanding the many rebuffs he received from the defendant”.  

27. 	The Chief Justice considered that there was nothing to justify the Court of Appeal discarding the judge’s findings as to the truthfulness of the appellant and Mr de Freitas.  Their Lordships agree.  Moreover the fact that a conversation took place between the appellant and Mr Harper before the former went to lunch and the existence of a piece of paper were quite incapable of supporting the inference that the gift to the appellant was inspired by his undue influence over the testator.  Their Lordships also agree. Moreover in considering the relationship between the two men it was relevant to have regard to Mr Harper’s experience in the law he was not a layman with no legal knowledge.  The desire to leave the appellant his estate came from their long friendship and mutual assistance.  

28. 	As the recital of the findings of the judge shows, any claim that there was undue influence which led to the testator’s solicitor receiving the legacy or that there was fraud on the part of the person instrumental in obtaining the will were disproved by the evidence.

29. 	Counsel for the respondent, however, put forward a new alternative argument not advanced below, namely that the appellant had a duty to decline to act or to allow his firm to act, since his interest in obtaining a benefit under the will was in conflict with his duty to decline to act unless Mr Harper took independent advice.  This argument is misconceived.  The appellant’s duty as Mr Harper’s solicitor was to ensure that his true testamentary wishes were faithfully carried out.  Once undue influence is negatived there was no conflict between the appellant’s interest and his duty.  It might have been desirable for Mr Harper to have taken independent advice, but the appellant had no duty to advise him to do so.  Had he given such advice, it would have been purely for his own protection.

30. 	Accordingly their Lordships consider, as did the Chief Justice, whose opinion they share, that the doubts or suspicions have been sufficiently answered.  The appeal must be allowed with costs; the 1978 will stands.