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Bharat and Ramlochan v Bharat

Id. vLex Justis VLEX-792933861

Link: https://justis.vlex.com/vid/bharat-and-ramlochan-v-792933861

Text

High Court

Gobin, J.

CV 2015-02486

Bharat and Ramlochan

and
Bharat

Appearances:

Ms. Theresa Hadad instructed by Ms. Marina Narinesingh for the claimants

Mr. Hendrickson Seunath, SC instructed by Mr. Khristendath Neebar for the defendant

Wills - Interpretation — Action seeking interpretation of clauses 2 and 7 of the will of the
deceased — Intention of the deceased as disclosed by the words used in his will.

Des, Vignes. J.
INTRODUCTION

The claimants are the duly appointed Legal Personal Representatives of the Estate of the
Solomon Bharat (hereinafter called “the deceased”). By this action, they seek the Court's
interpretation of Clause 2 and Clause 7 of the Will of the deceased. The defendant is one of the
sons of the deceased and claims to be entitled to the dwelling house building and the parcel of
land on which it stands comprising 5,097 square feet situate in the Ward of Charuma in the
Republic of Trinidad and Tobago known as Lot #15 registered in Volume 1721 Folio 165
(hereinafter referred to as “the disputed property”).
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Clauses 2 and 7 of the said Will are set out hereunder: [Last Will and Testament of Solomon
Bharat dated 29th May, 1995, who died on 21st January, 1996]

“2. I give devise and bequeath to my lawful wife RUBY BHARAT my dwelling
house building and the parcel of land on which it stands comprising Five
Thousand and Ninety-seven Sq. Ft. situate in the Ward of Charuma, in the
Republic of Trinidad & Tobago known as Lot #15 deed Registered in Vol. 1721,
Folio 165 together with all the household articles therein with my son MICHAEL
BHARAT having life interest i.e. until he is able to acquire his own home and I
direct my sons CLIFFORD and MICHAEL to take care and keep the premises
clean and in good repair and if necessary a room 10 feet by 12 feet must be built
with toilet and bath downstairs for my son STEVE BHARAT…

7. I, SOLOMON BHARAT request that my wife RUBY BHARAT give, devise

and bequeath before her death our dwelling house building and the parcel of
land on which it stands together with all the household articles therein situate in
the Ward of Charuma, in the Republic of Trinidad & Tobago Deed Registered in
Vol. 1721, Folio 165 to my son Clifford Bharat for his own use and benefit
absolutely.”

Based on legal advice, the claimants interpreted these clauses to mean that: a. by virtue of
Clause 2, the deceased devised the disputed property to Ruby Bharat (now deceased), subject
to the life interest of Michael Bharat; and b. by virtue of Clause 7, the deceased expressed a
request of Ruby Bharat that, prior to her death, she devise the disputed property to the defendant,
but, this request did not amount to a devise and did not operate to confer any benefit on the
defendant.

Based on their interpretation, on 10th July, 2013, the claimants executed a Memorandum of
Assent whereby the disputed property was assented to the Estate of Ruby Bharat, deceased,
subject to the life interest of Michael Bharat and the same was registered on 15th July, 2013.
However, on 3rd September, 2013, the Registrar General issued a rejection notice seeking
clarification of the interest of Clifford Bharat in the disputed property.

By letter dated 10th February, 2014, Counsel for the defendant wrote to Counsel for the claimant
and expressed his disagreement with the claimants' interpretation of the Clauses and requested
an assurance that the disputed property would be vested in the defendant.

By letter dated 4th July, 2014, the claimants' Attorneys-at-Law responded that the claimants
proposed to apply to the Court for an interpretation of the said clauses and, by letter dated 10th
September, 2014, Counsel for the defendant indicated that the defendant had no objection to the
proposed course of action.

Accordingly, on 20th July 2015, these proceedings were commenced by the claimants, seeking
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the determination of the following questions:

a. An interpretation of Clause 2 and Clause 7 of the Will of the deceased;

b. The determination of the rights or interest of the Estate of Ruby Bharat and Michael
Bharat who claim to be entitled to benefit under Clause 7 of the Will of the deceased; and

c. The determination of the rights of Clifford Bharat who claims to be entitled to benefit
under Clause 7 of the Will of the deceased.

PROCEDURAL HISTORY

On 5th October 2015, the Fixed Date Claim was listed for hearing and Attorneys-at-Law for the
claimants and for Clifford Bharat appeared and sought an adjournment to enable them to discuss
and agree upon a timeline for filing submissions. The hearing was adjourned to 15th October,
2015;

By letter dated 14th October 2015 from the claimants' Attorney-at-Law, countersigned by the
defendant's Attorneys-at-Law, the Court was notified that the parties had agreed a timetable for
the filing of submissions and that Clifford Bharat be joined as a defendant in these proceedings.

10 Accordingly, on 15th October, 2015, this Court made the following Order:

i. Permission be granted for Clifford Bharat be joined as a defendant to this Application;

ii. Parties do file and serve Written Submissions together with supporting authorities on or
before the 30th November 2015;

iii. Parties do file serve Written Submissions in Reply, if necessary, on or before the 15th
December 2015.

11 Written submissions were filed on behalf of the defendant on 23rd November, 2015 and on
behalf of the claimants on 4th December, 2015. On 15th December, 2015, written submissions in
reply were filed on behalf of the claimants.

12 On the rescheduled return date of 25th January, 2016, this Court granted permission to the
defendant to file and serve supplemental submissions with regard to the reception of extrinsic
evidence to explain what the testator had written in his Will, on or before 19th February, 2016 and
to the claimants to file and serve submissions in reply thereto on or before 8th March, 2016.

13 In compliance with this order, the defendant filed supplemental submissions on 18th February,
2016 but the claimants did not file any submissions in reply.

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THE LAW

14 According to Halsbury's Laws of England: [Wills and Intestacy, Volume 102 (2010) at para. 192.]

“…the primary evidence of the testator's intentions is the will itself, properly
authenticated, and any codicil to it… In order that the will may be properly expounded,
the court adopts the general rule that any evidence of the circumstances is admissible
which in its nature and effect simply explains what the testator has written, but in
general no evidence may be admitted which in its nature or effect is applicable to the
purpose of showing merely what he intended to have written. Extrinsic evidence may
be resorted to for the purpose of proving a fact which makes intelligible something in
the will which, without the aid of such evidence, would not be intelligible.

However, the general rule is qualified by the availability of rectification of wills and the
consequent wider scope for the admissibility of extrinsic evidence of intention, the
court necessarily having to construe the will to see whether it fails to carry out the
testator's intentions, by reason of clerical error or failure to understand instructions.”

15 In Williams on Wills, [Volume 1, Chapter 49 at paras. 49.1 – 49.3] the general principles in
relation to the construction of Wills were stated as follows:

“49.1 … The first and great rule to which all others must bend is that effect
must be given to the intention of the testator; but the intention here in
question is not the intention in the mind of the testator at the time he made his
will, but that declared and apparent in his will. The application of the rule
resolves itself into two questions of construction: first, what is the intention of the
testator disclosed by the will; and secondly, how can effect be given to that
intention.

49.2 … The court of construction must ascertain the language of the will,
read the words used and ascertain the intention of the testator from them.
The court's duty is not to ascertain what the actual mental intentions were. The
only question for the court of construction is what is the meaning of the
words used, and the expressed intention in all cases is considered to be
actual intention; The court cannot give effect to any intention which is not
expressed or employed in the will. Though this principle is not in any way
questioned, it is still possible for judges to disagree upon what intention the
words show.

49.3 … In ascertaining the intention there are three questions: (i) what words
has the testator used to express his intention; (ii) what is the meaning of such
words in relation to the persons and things described, who are the specific
persons to be identified as donees and what are the specific things to be
identified as the subjects of disposition; and (iii) what is the meaning of the
words in relation to the disposition of the property among the donees. There are
differences in the evidence admissible to establish these matters of
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construction.” [Emphasis mine].

16 As to the admissibility of extrinsic evidence, Williams (supra) went on to state as follows:

[Chapter 57 at paras. 57.1]

“57.1 …The traditional approach of English law to the construction of wills has
been to adopt a literal approach, looking mainly to the words of the will largely
to the exclusion of extrinsic evidence. Factual evidence of surrounding
circumstances has been admitted for the purpose of identification of persons or
things but extrinsic evidence relating to the testator's dispositive intentions has
been excluded, except to resolve latent ambiguities.

Although this approach has been apparent for over a century the formulation of the
rules regarding the admission of extrinsic evidence was not clear and many of the
cases were open to charges of inconsistency and anomaly.

The need for some legislative clarification, and relaxation, to match the prevalent
judicial mood for a wider search for the testator's intention and a less rigid adherence
to strict rules of construction, was apparent and found expression in the AJA 1982, s
21. This provision sets out in short general terms the rules governing the admission of
extrinsic evidence in the interpretation of wills and provides for the wider admission of
evidence of the testator's intention. These new rules apply to the wills of testators who
die on or after 1 January 1983 and the traditional rules remain applicable to earlier
deaths (subject to what is said in para [57.2] below). Further the new rules clearly owe
something to the old formulations and for these reasons it is necessary to consider
both the case law principles and the statutory provisions. But first the status and
function of the probate must be considered.

57.2 … The House of Lords decisions referred to in para [50.1] above, and in
particular the judgments of Lord Hoffmann, in Mannai Investment Co Ltd v.
Eagle Star Life Assurance Co Ltd and Investors' Compensation Scheme Ltd v
West Bromwich Building Society, may have implications for the admissibility of
extrinsic evidence as well as the general principles of construction. As
mentioned in para [50.1] above, in Mannai Lord Hoffmann specifically referred
disparagingly, to the former (i.e. before AJA 1982, s 21) rule confining the
admissibility of extrinsic evidence of intention in construing wills to cases of
latent ambiguity. It is possible that it is now permissible to have regard to any
extrinsic evidence which is relevant, including evidence of the testator's
intention, without it being necessary to show that the case comes within the pre
1983 common law rules, where the testator died before 1983, or that it comes
within AJA 1982 s 21, where the testator died in or after 1983.”

17 In the local authority of Steele v. Annisette & Another, [HCA 298 of 2003 at pp. 5 – 6.] Stollmeyer
J. (as he then was) was called upon to interpret a devise contained in a Will. Therein, it was
agreed that ambiguity arose in relation to the identification of the devised property and that
extrinsic evidence of the surrounding circumstances were admissible to resolve same. In

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examining the law, the learned Judge stated as follows:

“The primary principle applied in the construction of a will is to give effect to the
testator's intention as expressed in the words of the will. That intention is “…collected
from the whole will…” (see Williams on Wills 8th Ed. Vol. 1 para. 50.1 at page 540)
and a lack of technical words, an inaccuracy in grammar, a lack of or inaccuracy in
punctuation, are all immaterial so long as the intention is clear. A benevolent
construction is adopted, and consideration is given to whether the will is drafted by
the testator or by a skilled lawyer…

In ascertaining the intention of the testator, the will is read initially without
reference to the consequences of any rule of law or canon of construction i.e.
words are given the necessary meaning in the context of the will as a whole.
where on the face of the will there is a clear, general or paramount intention to which
effect can be given, then that intention must be given that effect.

It is only if the words used contained some latent ambiguity that extrinsic
evidence will be admitted to show the testator's intention. Evidence of
surrounding circumstances is admissible, however, for the purpose of identifying the
persons or things.” [emphasis mine].

18 On appeal, this decision was upheld and Warner JA., delivering the judgment of the Court of
Appeal, [CA Civ 65 of 2005 at paras. 17-21] examined the circumstances in which extrinsic
evidence may be relied upon to construe a Will. She said:

“17. The leading principle of construction

It is well settled that at common law, in construing a will the general principle is that
the court must ascertain the intention of the testator as expressed by him in the will. In
Perrin v. Morgan (1943) A.C. 399 at 406 Simon L.C. said –

“the fundamental rule in construing the language of a will is to put on the words used
the meaning which, having regard to the terms of the will, the testator intended. The
question is not, of course, what the testator meant to do when he made his will, but
what the written words he uses, mean in the particular case – what are the ‘expressed
intentions’ of the testator.”

The policy which underlies this rule is that detailed requirements of the legislation as
to execution attestation and publication cannot in general be nullified by allowing
extrinsic evidence as to intention save in limited circumstances. In other words, in a
court of construction, the only legitimate evidence of the testator's intentions is the will
itself properly authenticated and any codicil to the will (See Feeney – the Canadian
law of Wills at page 5).

18. I should however notice that the development of the jurisprudence in other
jurisdictions had been to introduce a more liberal approach to construction by
legislation. This is evident, for example, in section 21 of the Administration of
Justice Act 1982 in England, which provides for the admission of extrinsic
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evidence including evidence of the testator's intention, to assist in the resolution

of all difficulties and ambiguities in wills.

19. In this jurisdiction, there has also been some movement, to the extent that
the general rule has been modified by section 27(1) of the Succession Act 1981
which has not yet been proclaimed. It will permit the use of extrinsic evidence to
show the testator's intention. I now return to the applicable common law
principles.

20. The intention of the testator declared by him and apparent on the face of the
will

As I have indicated, the rule requires that a court of construction consider,

(1) the intention of the testator as disclosed by the will;

(2) the manner in which effect can be given to the intention.

(See Hals, 4th Edition Vol. 50, para 408).

In ascertaining the testator's intention, the court is concerned with the following three
matters –

(1) the words that the testator has used to express his intentions;

(2) the meaning of those words in relation to the persons and things described,
that is to say, who and what are the specific persons and things to be identified
as the donees and the subjects of disposition, or as the persons and things
otherwise mentioned in the will; and

(3) the meaning of the words in relation to the disposition of property among the
donees.

(See Hals above para. 372)

21. The exceptions to the rule that extrinsic evidence is inadmissible are –

(1) under the armchair principle that is evidence of surrounding

circumstances existing when the will was made to explain special terms
used, peculiar meanings or mistakes; Hals (above) para 397

(2) To explain a latent ambiguity; Hals (above) para 403

(3) to support or rebut a presumption raised in equity. (See Hals. (above)

para 382.”

19 In the Privy Council decision in Sammut & Others v. Manzi & Others, [2008] UKPC 58 at paras 4
– 6 Lord Phillips of Worth Matravers stated as follows in respect of the approach of the Court to
the construction of a Will:

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“4. The starting point when construing any will is to attempt to deduce the intention of the
testator by giving the words of the will the meaning that they naturally bear, having regard to
the contents of the will as a whole. Sometimes it is legitimate to have regard to extrinsic
evidence in order to show that words used had a special meaning to the testator, but it has
not been suggested that this is such a case.

5. Extrinsic evidence of the testator's intention may also be admissible to resolve

uncertainty or ambiguity…

6. There were placed before their Lordships no less than 17 decided cases, some of which
involved decisions on wording that bore some similarity with that used in the present case.
Little assistance in construing a will is likely to be gained by consideration of how other
judges have interpreted similar wording in other cases. Counsel rightly recognised that
the starting point must be to look at the natural meaning of the wording of the will to
be construed without reference to other decisions or to prima facie principles of
construction.” [emphasis mine].

SUBMISSIONS

20 Counsel for the defendant submitted that:

a. Effect must be given to the intention of the testator and when looking at the Will of the
deceased as a whole, notwithstanding the use of certain words and expressions, his
intention was for his wife, Ruby Bharat to have a life interest in the disputed property as
well as in the properties referred to in Clauses 4 and 6 of the Will and she was to be taken
care of during her lifetime. Further, his children were to be provided for;

b. Apart from the Will of the deceased, the Court ought to consider both extrinsic evidence
as well as the Will of Ruby Bharat to determine the intention of the testator in respect of
these clauses. Evidence of previous gifts given to the other children of the deceased who
have not been named in the Will would also be helpful. Extrinsic evidence may be given in
order to explain what the testator had written or to make intelligible something in the Will
which without that evidence would be unintelligible.

c. As to Clause 2, the deceased did not intend to make an absolute gift of the disputed
property to Ruby Bharat. Instead, he also gave Michael Bharat a life interest or at least a
license to occupy the dwelling house until he was able to acquire his own home. He further
directed that Steve should have a place in the dwelling house and that the defendant, if he
lived there, should continue to so do; and

d. As to Clause 7, were it not the intention of the deceased that the defendant be given the
disputed property after Ruby Bharat's death, he would not have mentioned a “request” that
she give the disputed property to the defendant, when it was in his power to so do. Unless
the deceased had already given property to the defendant, he could not have intended not
to leave any property to him while evincing the level of trust and confidence that he had in
him, as revealed in his Will.

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21 Counsel for the claimants submitted that:

a. The Will of the deceased falls to be construed on its face and by reference to the
unchallenged facts set out in the Fixed Date Claim Form and Statement of Case;

b. In respect of the interest of Ruby Bharat:

i. it is clear and unambiguous that the intention of the deceased was to devise the fee
simple absolute in the disputed property to his wife, Ruby Bharat, subject only to the
interest of Michael Bharat. The interest of Michael Bharat does not limit Ruby Bharat's
interest save that it is in remainder and not in possession. The remainder not having
been vested in Ruby Bharat prior to her death nonetheless endures for the benefit of
her Estate. Further, the fee simple remainder interest of Ruby Bharat was a present
interest which was capable of co-existing with the interest of Michael Bharat:
Stuartburn v. Kiansky, 2001 MBQB 94 and Charles v. Barzey (2003) 1 WLR 68;

ii. If it was the intention of the deceased to devise a life interest in the disputed assets
to Ruby Bharat he would have so done, just as he did in relation to life interests
devised to other beneficiaries at Clauses 4 and 6 of the Will;

iii. Clause 2 and 7 are not inconsistent with each other and the latter actually confirms
the intention of the deceased in Clause 2 since the “request” contained in clause 7
could only be made of Ruby Bharat if the deceased had the understanding that she
would have the power to so do, being the owner of the disputed property;

c. In respect of the interest of Michael Bharat:

i. The Court must determine whether the inclusion of the words “until he is able to
acquire a home of his own” assigns a different meaning to the usage of the term “life
interest”. In so doing, the Court ought to consider the established rule of construction
that ambiguous words do not control a clear gift: Wills by Thomas Jarman (6th
Edition) at para. XII of p. 2209;

ii. The Court must consider whether the deceased intended for Michael Bharat to
receive an estate in the disputed assets and if so, there are only a limited number of
such interests recognized under the law of real property;

iii. The devise to Michael Bharat may be a determinable life interest but it falls to be
considered whether such interest is registrable under the Real Property Act (RPA)
although it may take effect in equity. In addition, the determining event is highly
subjective in that only Michael Bharat may truly determine when he is able to acquire
his own home. However, the actual acquisition of his own home does present some
objective criteria;

iv. If it is found that Michael Bharat is neither entitled to a life interest (without words of
limitation) nor a determinable life interest, effect may be given to the said devise by
construing it as an irrevocable license which may only determine upon the happening
of the contemplated event, that is, until he is able to acquire a home of his own;

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v. The defendant's submissions as to the entitlement of Michael Bharat are entirely

congruent with the several interpretations proposed by the claimants;

d. In respect of the interest of the defendant:

i. The defendant's interest in the disputed property turns on whether or not, by the
words in Clause 7, the deceased imposed a trust on Ruby Bharat. Such a
construction should be rejected by the Court since the words used by the deceased
are not imperative and are incapable of creating a trust: Knight v. Knight [1840] 3
Beav 148;

ii. Courts will not consider a trust to be created if the testator appeals to the donee to
apply the property in a particular way instead of obliging the donee to do so: Re
Johnson [1939] 2 All ER 458 and Re Diggles [1888] 39 Ch. D 253; and

iii. There was no gift to the defendant created by Clause 7 of the Will. The deceased
made a request of Ruby Bharat and, while he may have wanted her to carry out his
request, it was not a condition of the gift that he made to her by Clause 2 and not
imperative on a proper construction of Clause 7;

iv. The defendant's submissions in relation to the trust and confidence that the
deceased had in the defendant do not translate to an intention to devise the disputed
property to him.

e. The Will of Ruby Bharat cannot aid or assist the Court in construing the Will in the instant
matter; neither does evidence of previous gifts to other children bear any relevance to the
construction of the Will of the deceased. In the circumstances of this case, extrinsic
evidence is inappropriate and any direct evidence of statements of intention made by the
testator is inadmissible. The terms of the Will under consideration are neither ambiguous or
equivocal and any difficulty which arises in relation to its construction can be resolved on
consideration of the literal meaning of the words used and in default, by recourse to the
rules of construction;

f. The defendant did not seek any direction for the filing of evidence and it is inappropriate
for such an application to be made in the written submissions; and g. The defendant has
provided no basis for his assertions that the draftsman failed to prepare the Will in
accordance with the intention of the deceased.

ANALYSIS AND FINDINGS

22 Applying the law as stated above, the starting point for this Court is to consider the intention of
the deceased as disclosed by the words used in his Will and the manner in which effect can be
given to that intention. The Court is required to consider the Will as a whole and not just Clauses
2 and 7 in isolation. In ascertaining the intention of the deceased, I must be concerned with the
words that the deceased used to express his intention, the meaning of those words in relation to
the persons and the things described and the meaning of the words in relation to the disposition
of the property among the donees.
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23 Apart from Clauses 2 and 7 of the Will, the deceased made the following dispositions which are
not the subject of challenge between the parties:

a) By Clause 3, he gave, devised and bequeathed to the Second claimant, a vacant parcel
of land situate in the Ward of Cocal known as Lot #91 for her own use and benefit. He also
directed the Second claimant to take care of her mother, Ruby Bharat, until her death;

b) By Clause 4, he gave, devised and bequeathed to the First claimant his Shop-house,
building and the parcel of land on which it stands situate in the Ward of Cocal known as Lot
#90 with his wife, Ruby Bharat, having a life interest in same. He also directed the First
claimant to take care of him and his wife, Ruby Bharat, during their lifetime;

c) By Clause 5, he gave, devised and bequeathed to his son, Stephen Bharat 2 lots of land
as a tenant from a larger parcel of land comprising 6 acres, which is in joint tenancy with
others situate in the Ward of Cocal; and

d) By Clause 6, he gave devised and bequeathed to his son, David Bharat a parcel of land
situate in the Ward of Charuma, with his wife Ruby Bharat, having a life interest in same.

24 What is evident from these other clauses of the deceased's Will is that he had a clear intention to
confer upon his wife a life interest in his Shop-house (which he gave to the First claimant) and in
the parcel of land in the Ward of Charuma (which he gave to his son, David). It is also clear that
he took steps to ensure that he and his wife, Ruby would be well taken care of and he sought to
achieve this by so directing the First and Second claimant.

25 It is in the context of the entire Will; therefore, that the Court must consider the intention of the
deceased as disclosed by the words used in his Will and the manner in which effect can be given
to that intention.

26 When I consider Clause 2 of the deceased's Will, therefore, I observe that the words used by the
deceased are in similar terms to the gifts and devises contained in clauses 3, 4, 5 and 6 and that
there are no words of limitation contained therein, apart from the reference to the First claimant
having a life interest “i.e. until he is able to able to acquire his own home” and the directions
given to the First claimant and the defendant to take care of the premises and keep them clean
and, if necessary, to build a room with a toilet and bath downstairs for his son, Steve.

27 Section 58 of the Wills and Probate Act provides as follows:

“Where any real estate shall be devised to any person without any words of limitation,
such devise shall be construed to pass the fee simple, or other the whole estate or
interest that the testator had power to dispose of by Will in such real estate, unless a
contrary intention shall appear by the Will.”

28 In my opinion, the words used by the deceased in Clause 2 of his Will reveal his intention to
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devise the disputed property to his wife, Ruby without any words of limitation. Further, I am of the
opinion that the other clauses of the Will and, in particular Clause 7 thereof, do not reveal a
contrary intention. Accordingly, applying Section 58 of the Wills and Probate Act, such devise
shall be construed to pass the fee simple to his wife, Ruby Bharat, and not a life interest as
contended for by Counsel for the defendant.

29 Further, I do not accept the submissions of Counsel for the defendant that this Court ought to
have regard to extrinsic evidence in order to construe Clause 2 of the Will. In particular, Counsel
submitted that the Court ought to consider evidence of other gifts given to the other children of the
deceased who have not been named in the Will as well as the provisions of the Will of Ruby
Bharat. In my opinion, there is no uncertainty or ambiguity in the words used by the deceased in
Clause 2 that justify the Court in taking into account such extrinsic evidence. In any event, for this
Court to consider evidence of other gifts given by the deceased to his other children and the
provisions of Ruby Bharat's Will would be contrary to the well-settled principles of construction as
set out by the Court of Appeal and the Privy Council of giving effect to the intention of the testator
as expressed in the words of the Will. To embark on an examination of such extrinsic evidence
would result in a consideration of what the deceased intended to have written and not what was
declared and apparent in the words used in his Will and the authorities make it clear that this is
not permissible. The deceased has clearly described the disputed property and has identified his
wife as the donee of the devise and he has not used any words of limitation. Accordingly, there is
no basis for applying the armchair principle to consider evidence of surrounding circumstances
existing when the Will was made to explain special terms used or peculiar meanings or mistakes
or to explain a latent ambiguity or to support or rebut a presumption raised in equity.

30 With respect to the reference in Clause 2 to Michael Bharat, Counsel for the claimants submitted
that the First claimant was either entitled to a life interest without words of limitation, or a
determinable life interest or an irrevocable licence which may only be determined when he is
able to acquire his own home. Counsel for the defendant submitted that the First claimant was
entitled to a life interest or at least a licence to occupy the dwelling house until he was able to
acquire his own home.

31 Having considered Clauses 4 and 6 of the Will in which the deceased granted life interests to his
wife, Ruby Bharat in the properties given to the First claimant and his son, David respectively, it
is apparent that the words used in Clause 2 are significantly different. I am of the opinion that the
words used by the deceased in Clauses 4 and 6, reveal a clear intention to give Ruby Bharat an
interest in these properties that would terminate upon her death.

32 However, in Clause 2, the deceased used the words “with my son MICHEAL BHARAT having
life interest i.e. until he is able to acquire his own home…” In my opinion, the inclusion of these
words, taken in the context of the words used by the deceased in Clauses 4 and 6, lead me to the
conclusion that the deceased did not intend to confer on the First claimant a life interest, that is,
an interest that would terminate upon his death. By the use of these words, I am of the opinion
that the deceased intended to permit the First claimant to occupy the disputed property which he
gave to his wife, Ruby Bharat and such permission amounted to a licence to occupy the disputed
property.
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property.

33 The more difficult question, however, is to determine whether this licence is irrevocable or
terminable on the happening of some specific event. Certainly, the position would be clear if the
First defendant actually acquired his own home. In that event, the licence would terminate upon
such acquisition. The explanatory words used by the deceased are clear and unambiguous and
reveal the deceased's intention to permit the First defendant to occupy the disputed property
“until he is able to acquire his own home”. However, the effect of these words is that the event
that may result in the termination of the licence is not capable of being ascertained in an
objective manner but is left entirely within the subjective discretion of the First claimant since only
the First claimant would know when he is “able to acquire his own home”. However, given the
clear intention of the deceased, to give the First claimant permission to occupy the disputed
property and to confer on him a discretion to decide when this permission would come to an end,
I am of the opinion that the licence is not irrevocable but may be terminated either by the
acquisition by the First defendant of his own home or when he, in his own discretion, is able to
acquire his own home.

34 With respect to Clause 7 of the deceased's Will, I am of the opinion that the words used by the
deceased mean that the deceased, having already devised the fee simple to his wife, Ruby
Bharat, was expressing a desire or wish that, before her death, she would devise the disputed
property to the defendant. This request was not expressed in imperative terms and did not
impose upon his wife an obligation to comply with the request. Accordingly, I accept the
submissions of Counsel for the claimants that Clause 7 did not create a trust in favour of the
defendant. Further, I do not accept the submissions of Counsel for the defendant that the
deceased could not have intended not to leave any property to the defendant while
demonstrating the level of trust and confidence that he had in him. As a court of construction, this
Court is required to give effect to the intention of the deceased as declared and apparent in the
words used in his Will. I have already found that by Clause 2 of his Will, the deceased devised
the disputed property to his wife, Ruby Bharat. The words declared and apparent in Clause 7
disclose an intention to make no more than a request of Ruby Bharat and this has no binding
effect upon her as the owner of the disputed property.

35 In the circumstances, Clause 7 did not fetter or restrict Ruby Bharat's power to deal with the
disputed property as she saw fit prior to her death or by her Will upon her death.

CONCLUSION

36 Based on the questions put forward by the claimants for clarification by this Court, I find and
declare that on an interpretation of Clauses 2 and 7 of the Will of the deceased:

a. The Estate of Ruby Bharat, deceased, is entitled to the fee simple in the disputed
property;

b. The First claimant, Michael Bharat is a licensee with permission to occupy the disputed
property until either he acquires his own home or until he is able to acquire his own home;

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and

c. The defendant, Clifford Bharat is not entitled to an estate or interest in the disputed
property.

COSTS

37 Having regard to these findings, I am of the opinion that since the claimants have not succeeded
in their contention that the First claimant is entitled to a life interest in the disputed property and
the defendant has not succeeded in establishing that he is entitled to the disputed property, an
appropriate order for costs is that the defendant should pay two-thirds the prescribed costs of this
action.

Dated the 2nd day of May, 2016

André des Vignes

Judge

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