Bankay et Al v Sukhdeo

• Jurisdiction: Guyana
• Judge: Persuad, J.A.,Crane, J.A.,Haynes, J.A.
• Judgment Date: 08 October 1975
• Neutral Citation: GY 1975 CA 24
• Docket Number: Civil Appeal No. 27 of 1974
• Court: Court of Appeal (Guyana)
• Date: 08 October 1975

Court of Appeal

Persaud, J.A.; Crane, J.A.; Haynes, J.A.

Civil Appeal No. 27 of 1974

Bankay et al

and

Sukhdeo

Appearances:

Sir L. Luckhoo, S.C., for Nos. 3, 4 and 5 appellants.

F. Ramprashad, S.C. for the respondent.

Inheritance and Succession - Will — Attestation

Persuad, J.A.

1 For the reasons given by my brother Haynes I agree that that this appeal should be dismissed and that the judgment of the court below be affirmed.

2 I propose to deal only with the question of costs.

3 In the court below the learned judge rejected the defence as being untrue and worthless and described the defendants' action as speculative when he said: “After hearing arguments I found no justifiable cause for the defendants to have opposed the will in question. The testator nor the plaintiff did not contribute in any way for the opposition and/or counterclaim of the defendants (sic) … and he ordered the defendants to bear their own costs while ordering the plaintiff's costs to be paid out of the estate.

4 In this court the defendants have urged that they had every reason to question the due execution of the will, and therefore, the judge in ordering them to bear their own costs, did not apply the proper principles of law. In answer to that submission, the plaintiff has urged that there were really no reasonable grounds of suspicion and that in view of his findings, the judge was entitled to make the unsuccessful defendants bear their own costs.

5 The question of costs in probate actions, like any other type of action, is subject to the discretion of the court, but, as has been pointed out in Hanoman v. Hanoman (1971) 18 W.I.R at p. 40, certain principles governing the matter, though not intended to be exhaustive, have been worked out over a period of time. In Mitchell v. Gard164 E.R. 1280, at p. 1281, the matter is put thus:

“The basis of all rule on this subject should rest upon the degree of blame ‘to be imputed to the respective parties; and the question, who shall bear the costs? will be answered with this other question, whose fault was it that they were incurred? If the fault lies at the door of the testator, his testamentary papers being surrounded with confusion or uncertainty in law or fact, it is just that the costs of ascertaining his will should be defrayed by his estate.

If the party supporting the will has such an interest under it that the costs, if thrown upon the estate, will fall upon him, and he by his improper conduct has induced a litigation which the Court considers reasonable, it is not unjust that the estate should bear the costs of litigation which his conduct has caused.

From these considerations, the Court deduces the two following rules for its future guidance: first, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate; secondly, if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.”

6 In Spires v. English (1907) P., the President of the court, Sir Gorell Barnes, said (at p. 123):

“In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation.”

7 And in the later case of Re Cutcliffe[1958] 3 All E.R. 642, in dealing with the same question, Hodson, L.J. is recorded as having said (at p. 648):

“While it would not be possible to limit the circumstances in which a testator is said to have promoted litigation by leaving his own affairs in confusions I cannot think it should extend to cases where a testator has misled other people By his words, either written or spoken, and perhaps inspired false hopes in their bosoms that they may benefit after his death. It does not seem to me that such a situation was in the minds of the learned judges who in the past laid down the practice that costs should be allowed out of the estate, where the fault of the testator has led to the litigation. The common situation is that which arises day by day in the courts, of construction where the testator has used language which is difficult to understand, and where by himself or by his solicitor he has created the difficulty. There the costs are normally borne by the estate.

“It seems to me a strong thing and a thing to which I should be slow to listen, to maintain that people whose evidence has been found by the learned judge to have been wholly false and who have lost their case with costs against them, should be heard to say that an order for costs should be made wholly or in part in their favour because the court normally exercises its discretion in these cases along certain lines and in accordance with certain principles. The discretion of the court is always there, and the rules on which that discretion is exercised are for the assistance of those who have to advise litigants before they embark on litigation, so that they may have some idea of what risks they run as to costs. In the Probate Division, notwithstanding exceptions to be found in the books, the probability is that people who unsuccessfully make pleas of undue influence and of fraud will be condemned in the costs not only of that charge but of the whole action.”

8 In the case before us it could hardly be said that the litigation was brought about by the folly of the testator to warrant any further costs being paid out of the estate.

9 The evidence called on behalf of the plaintiff (executrix) and a comparison of the admitted signature of the deceased with that which appears on the disputed will support the judge's conclusion; and if he accepted the evidence of Mr. Jai Narine Singh and his clerk Joseph, then it was inevitable that he would have pronounced in favour of the will. It is true that Mr. Singh's evidence would appear to contradict that of his clerk in a material particular that is to say, the former maintained that there had been no alterations in the name of the deceased from ‘Henry’ to ‘Harry’, and of the word ‘West’ to ‘East’, and that if there were such alterations, he would have ensured that the testator initial the alterations, while the latter asserted that he had mistakenly typed ‘Henry’ for ‘Harry’ and ‘West’ for ‘East’, and that upon Mr. Singh drawing this to his attention, he erased ‘Henry’ and ‘West’ and typed in the name ‘Harry’ and the word ‘East’ in their place. The duplicate which was retained in office and which also carried the mistakes apparently was not challenged. An examination of the original will discloses that while there have been alterations as described by the clerk, they are not of such as would have necessitated the initials of the testator in the sense that on the face of the document there does not appear that the name ‘Henry’ and the word ‘West’ had been typed in and then struck out. So that one can say, with some amount of truth, that there is no alteration on the face of the document. And this is how I understood Mr. Singh's evidence when he said that there was no alteration.

10 The only other circumstance which the defendants have introduced to suggest that the will was improperly executed is to be found in the evidence of the handwriting expert whose evidence has been dealt with by my learned brother. Perhaps, the expert ought to have compared the signature on the will with the signature on a cheque issued by the deceased soon after the date of the will. Had he done so, probably he would have discovered some marked similarity. These were the circumstances which the defendant would urge cast suspicion upon the execution of the will. In my opinion, the judge was right in rejecting them and coming down on the side of the due execution of the due execution of the will.

11 In those circumstances it seems unjustified to order the costs of this appeal, to be paid out of the estate: at least the defendants should not have their costs met from assets of the estate. To do so, would be to waste away the assets upon litigation that was not brought about by any act of the testator or of the executrix, and was based upon no valid ground. A proper order would therefore be that the appeal be dismissed and that the Order of the court below affirmed as it stands; but that the Nos. 3, 4 and 5 defendants who are the only ones among the seven to have pursued this matter both in the court of first instance and in this court do pay the plaintiff's costs of this appeal.

12 Dated this 8th day of October, 1975.

Crane, J.A.

13 I concur.

Haynes, J.A.

14 James Harry Sukhdeo, the deceased testator, died on February 4, 1972, at the ripe age of 72. He had been twice married. His first wife, Hiria Sukhdeo, predeceased him in 1966. His second, Sukdai Sukhdeo, outlived him. Both bore him children: Hiria, eight (of whom seven were alive at his death), and Sukdai, six. He had also fathered three illegitimate...