Gregory Pascall v Aneisa Graham (Trinidad and Tobago)

Knowledge and approval of a will is generally presumed where the will was duly executed by a testator with testamentary capacity. Reading the will to or by the testator before execution greatly strengthens that presumption. If circumstances excite the court’s vigilance, the probate applicant must dispel the resulting suspicion. The burden varies with the gravity of the suspicion. The traditional two-stage inquiry remains appropriate in a case without extensive evidence, although whether a unitary approach is preferable in evidence-rich cases was left open. Exclusion of a close relative may call for vigilance, but does not by itself overcome strong evidence that the testator understood and approved the will. Lack of evidence of independent advice is not decisive where the will was professionally prepared and the gift is not subject to presumed undue influence.

The respondent sought probate of a 2009 will made by Carl Cox, which appointed him executor and left the estate to a Roman Catholic charitable community. The appellant, the deceased’s daughter, opposed probate on want of due execution, want of knowledge and approval, and undue influence. The High Court of Trinidad and Tobago refused probate on the first two grounds after a 2017 trial; undue influence had been abandoned.

The Court of Appeal reversed that decision in April 2023, holding that the will was duly executed and that knowledge and approval had been established. The appellant appealed to the Privy Council on knowledge and approval only. The central issue was whether the evidence raised a suspicion which the respondent had failed to dispel.

1. Appeal dismissed. The Board agreed that the case could be resolved on the available evidence without a retrial, given the lapse of more than 12 years and the sufficiency of the evidence.

2. The applicable inquiry was the traditional two-stage approach: first, whether the circumstances excited suspicion as to knowledge and approval; secondly, whether the probate applicant had dispelled that suspicion. The burden operates on a sliding scale according to the gravity of the suspicion. The Board left open whether a unitary, all-the-evidence approach should replace that inquiry in evidence-rich cases.

3. Due execution by a testator with testamentary capacity generally raises a presumption of knowledge and approval. That presumption was particularly strong because the simple will had been read to Mr Cox shortly before execution. The absence of evidence about his instructions did not establish that he had given none. His execution of the will, followed by handing it to the intended executor for safekeeping, strongly supported the inference that he understood and approved its contents.

4. The complete exclusion of the appellant was a circumstance calling for vigilance, but only at the lower end of the scale. It did not outweigh the positive evidence. The Board explained and distinguished Gill v Woodall [2010] EWCA Civ 1430 by reference to its exceptional facts and held that its policy observations did not alter the established legal principles.

5. The absence of evidence of independent advice did not displace the strong evidence of knowledge and approval. The will appeared professionally prepared, and this was not a gift to a fiduciary requiring proof of independent advice to avoid presumed undue influence. The High Court judge’s factual and analytical errors fatally undermined her conclusion, so the Court of Appeal was entitled to determine the issue afresh.

• Privy Council: Appeal dismissed.
• Court of Appeal of the Republic of Trinidad and Tobago: In April 2023, reversed the High Court and found in favour of the will.
• High Court of Trinidad and Tobago: In June 2017, refused probate on want of due execution and want of knowledge and approval; undue influence had been abandoned.