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Justice Glasgow rules on the EC$2 million joint bank account

Justice Raulston Glasgow – delivered judgement on the EC$2 million joint bank account

High court judge Justice Raulston Glasgow has been called upon to give a ruling on the proceeds in a EC$2 million Joint Account in which one of the holders, British national Lionel Akins who lived on the sister isle of Carriacou had left behind.

The other name on the account Lauralee Cross was trying to lay her hands on all the money despite instructions given by the deceased that half of the money be transferred to another Joint account that he held with a close relative, Garvin Mc Quilkin.

Republic Bank was conducting an investigation when Akins died and did not transfer the funds.

Cross instituted legal action against Republic Bank claiming that she is entitled to the beneficial interest of the proceeds of the joint account which she previously held with Akins.

She argued that her entitlement to the entire balance in the account in the sum of $2,000,000.00 arises by virtue of the right of survivorship after the deceased’s death.

The ancillary claimant (Mc Quilkin) pleads that Ms. Cross is not entitled to the entire proceeds on the account since the deceased instructed the bank to transfer the sum of $995,262.27 from that account to another account prior to his death.

She contended that the bank’s failure to honour her request deprives her of the benefit of the funds in the account and claimed for loss and damages in the sum of $2,000,000 together with orders for declarations and interest, among other relief.

In response to the claim, the bank denies that the deceased established the account jointly with Cross and that the account was a personal chequing account in the deceased’s name to which he thereafter added Cross as a joint holder.

The bank argues that it had a lawful basis for freezing the account and it was bound by a legal duty of confidentiality owed to the deceased and his estate with respect to transactions conducted on the account.

Following is the Raulston Glasgow judgement on the issue:-

JUDGMENT
[1] GLASGOW, J.: The claimant (Ms. Cross) has instituted this claim against the defendant (the bank) wherein she states that she is entitled to the beneficial interest of the proceeds of a joint account which she previously held with Lionel Akins (the deceased). Ms. Cross argues that her entitlement to the entire balance in the account in the sum of $2,000,000.00 arises by virtue of the right of survivorship after the deceased’s death. The ancillary claimant (Mr. Mc Quilkin) pleads that Ms. Cross is not entitled to the entire proceeds on the account since the deceased instructed the bank to transfer the sum of $995,262.27 from that account to another account prior to his death.

Claimant’s case
[2] It is Ms. Cross’ case that since September 2001, the deceased established an account with the bank for their joint benefit. The deceased died on 15th November 2017. Thereafter, Ms. Cross pleads that she instructed the bank to transfer the remaining funds in the account amounting to $2,000,000 to her account in the United Kingdom. However, the bank refused to accede to her request. Ms. Cross claims that the bank’s failure to honour her request deprives her of the benefit of the funds in the account. Therefore, she claims for loss and damages in the sum of $2,000,000 together with orders for declarations and interest, among other relief.

Defendant’s case
[3] In response to the claim, the bank denies that the deceased established the account jointly with Ms. Cross’. The bank response is that the account was a personal chequing account in the deceased’s name to which he thereafter added Ms. Cross as a joint holder. The bank argues that it had a lawful basis for freezing the account and it was bound by a legal duty of confidentiality owed to the deceased and his estate with respect to transactions conducted on the account. Mr. Roger Patrice, Manager of the bank’s Carriacou branch where the joint account was held, testifies in his witness statement that the Bank noted some inconsistencies in the authorisation for a transfer of moneys and requested more information from the deceased. The bank also explains that they paid a visit to the deceased’s home to confirm the authorisation for the transfer. Ultimately, the account was frozen while the bank purportedly sought legal advice concerning the transfer.

[4] Further, the bank admits that it received correspondence from Ms. Cross expressing the view that the bank ought to refuse the deceased’s instructions (the mandate). However, the bank claims that it provided Ms. Cross with a reasonable explanation as to why it was unable to accede to her request. Additionally, the bank contends that the documents which were disclosed to Ms. Cross show that the deceased had an intention which was contrary to the survivorship principle, in that the deceased did not intend for all of the monies in the account to belong to Ms. Cross. Therefore, the bank counterclaims for a declaration as to the true ownership of the monies in the account.

Ancillary claimant’s case
[5] Mr. Mc Quilkin is the deceased’s grandson. Mr. Mc Quilkin claims that on or about 9th November, 2017 the deceased executed documents authorising and requesting the bank to transfer the sum of $995,262.27 from the joint account held with Ms. Cross to another joint account which the deceased held with Mr. Mc Quilkin. He explains that the instructions from the deceased were accompanied by a medical certificate from one Dr. Tyron Davis conforming that the deceased was competent to make financial and other decisions despite his illness. He states that officers of the bank also attended the deceased’s home to confirm his instructions to effect the transfer. After the visit, the bank did not provide any indication that there was an impediment to carrying out the deceased’s instructions. The deceased died on 15th November 2017 but the bank did not carry out his mandate to transfer the funds before his passing.

[6] Mr. Mc Quilkin pleads that the bank owed the deceased a contractual duty to carry out his instructions and in failing to do so, the bank breached its contractual obligations. Further, he pleads that the bank owed the deceased a duty to carry out his instructions in a timely manner and with the skill reasonably expected of a banker and that by failing to do so the bank was negligent in discharge of that duty. Mr. Mc Quilkin claims for declarations and orders that the bank pays the sum of $995,262.27 to him, among other relief.

Evidence

Ms. Cross’ evidence
[7] On 28th September, 2020, Ms. Cross filed a witness statement in this matter. Ms. Cross states that she is the deceased’s daughter and that she is ordinarily resident in the United Kingdom. Ms. Cross avers that she received correspondence dated 18th September 2002 from the deceased together with an account card which he instructed her to sign and return to the bank’s branch in Hillsborough, Carriacou. Ms. Cross asserts that, having regard to the correspondence she received over the years from the deceased and the account card she signed, she understood that the monies held in the account were to be shared jointly and to be held solely by her upon the deceased’s death. Sometime after the deceased’s death, she visited the bank to provide instructions for the funds on the account. Ms. Cross states that the bank requested her to produce the deceased’s death certificate.

[8] On or about 27th November 2017, Ms. Cross produced the deceased’s death certificate and instructed the Bank to transfer the sum of $2,000,000.00 to her account in the United Kingdom. However, when she returned the following day, she was informed by the bank’s Branch Manager, Mr. Roger Patrice, that the account had been frozen. Mr. Patrice disclosed that prior to the deceased’s death, he received a request from the deceased to transfer half of the monies from the account. Ms. Cross then inquired why the request was not dealt with when it was received. Mr. Patrice informed her that he was not allowed to divulge any information and advised her to obtain legal advice. Therefore, Ms. Cross states, she retained counsel, Ms. Karen Samuel, who wrote to the bank requesting the basis for its refusal to comply with the mandate. In response to the correspondence, the bank through its Attorneys, Renwick and Payne, suggested that she should settle the matter with the deceased’s estate and provide the bank with a release. Being dissatisfied with the bank’s response, Ms. Cross filed these proceedings seeking relief.

The Bank’s evidence

Roger Patrice
[9] Mr. Roger Patrice is the officer in charge of Republic Bank’s Carriacou Branch. Mr. Patrice states that he knew the deceased held various accounts at the bank. The deceased held a savings account no. 1703399 to which he later added Ms. Cross as a joint holder. He states that as joint holder of the account either the deceased or Ms. Cross could have accessed the monies held therein. The deceased held another account with the bank which was a chequing account no. 32000049. Mr. Mc Quilkin was named as a joint holder of the latter checking account.

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[10] On or about 12th November 2017, Mr. Mc Quilkin visited the bank to conduct a transaction. Mr. Mc Quilkin informed him that he wanted members of the bank to visit the deceased at his home because the deceased wanted to conduct a transaction, but he was weak and unable to write. Mr. Patrice suggested to him that he should have a Justice of the Peace (JP) witness the written letter given by the deceased. Thereafter, Mr. Mc Quilkin returned to the Bank accompanied by one Mary Noel who produced a letter of instruction dated 9th November 2017 requesting that the bank transfer the sum of $1,890,524.55 from the joint account held with Ms. Cross to the joint account held with Mr. Mc Quilkin. The letter was witnessed by Theophilus Adams, Justice of the Peace. Mr. Patrice states that he inquired from Mr. Adams whether the contents of the first letter were read over to the deceased to which he replied in the negative. In view of this, Mr. Patrice avers that he was unable to conduct the transaction and requested another letter.

[11] During that same day, Mr. Patrice states that Mr. Mc Quilkin returned with a new letter of instruction dated 9th November 2017 with instructions to transfer the sum of $995,262.27. Mr. Mc Quilkin also produced a medical report from Dr. Tyron Anthony Davis dated 13th November 2017 confirming that the deceased was of sound mind. Mr. Patrice states that he again spoke with Mr. Adams (JP) to confirm whether he asked the deceased the sum of money that he desired to transfer. Mr. Adams confirmed that the deceased wanted to transfer half of the monies in the account.

[12] The following day, 14th November 2017, Mr. Patrice states that he sent an internal report to his supervisor about the events of the previous day and awaited further instructions. Mr. Patrice deposes that where there is information that a customer is aged or in ill health, it is customary for the bank to consult head office as to whether any special documents or evidence or even legal advice is required before the bank can comply with the written instruction. This, he says, would then delay the transaction depending on the circumstances. On or about 30th November 2017, Mr. Patrice testifies, Ms. Cross visited the bank and attempted to withdraw all of the monies in the account which she previously jointly held with the deceased. However, she was informed by the bank that the account had been frozen.

Mc Kie Griffith
[13] Mr. Mc Kie Griffith’s evidence is like Mr. Patrice’s evidence. At the material time Mr. Griffith served as the acting Manager, Retail Services at the bank. Mr. Griffith states that on 13th November 2017 he received correspondence from Mr. Patrice about a transaction at the branch in Carriacou with a customer who was elderly and in poor health. He testifies that he forwarded that correspondence to Mr. Clifford Bailey, the General Manager of Operations for the bank to notify him of the situation and to await further instructions. The following day, Mr. Griffith states that he received further correspondence from Mr. Patrice about the events that occurred the previous day with attachments including a new letter of instruction witnessed by a JP and a doctor’s report.

Thereafter, Mr. Griffith states that he met with Mr. Bailey who stated that given the inconsistencies in the two letter they were concerned that there might be some form of undue influence. Therefore, Mr. Bailey instructed him to place a hold on the account pending verification of the documents, a report from Mr. Patrice and a legal review from the bank’s attorneys as to how to proceed.

Mr. Mc Quilkin
[14] Mr. Mc Quilkin states that on 9th November 2017 he visited the deceased at his home accompanied by Ms. Noel. The deceased informed them that he wished to transfer monies from his account with Ms. Cross to the one he held with Mr. Mc Quilkin. Mr. Mc Quilkin and Ms. Noel then visited the bank to find out what would be required to complete the transfer. Mr. Patrice informed them that a letter signed by the deceased in the presence of a Justice of Peace stating his instructions would suffice. Mr. Mc Quilkin then prepared the letter with Ms. Noel’s assistance.

[15] On 13th November 2017, the letter was signed in the presence of Theophilus Adams, JP who then also signed and affixed his stamp. Mr. Mc Quilkin and Ms. Noel then returned to the bank. However, Mr. Patrice informed them that due to the sum of money involved the bank would need to verify whether the deceased was in the right state of mind. As such, Mr. Mc Quilkin states that the bank requested a letter from a medical doctor confirming that the deceased was of sound mind.

[16] Mr. Mc Quilkin contacted Mr. Adams and asked him to join him at the house together with Dr. Davis. When Dr. Davis and Mr. Adams arrived at the home, they suggested that the two of them should go inside to speak with the deceased privately.

Thereafter, Dr. Davis advised that, having examined the deceased, he was satisfied that he was of sound mind. Mr. Adams indicated that the deceased instructed that only one-half of the monies amounting to the sum of $995,262.27 in the joint account no. 1703399 ought to be transferred to account no. 32000049. The following day (14th November, 2017) Mr. Mc Quilkin testifies that he collected Dr. Davis’ letter and delivered it to the bank.

Shenell George
[17] Ms. Shenell George, an officer of the bank, indicated to him that she together with Mr. Patrice would like to speak with the deceased personally. Later that same day, Ms. George and Mr. Patrice visited the home and spoke to the deceased privately. Mr. Mc Quilkin states that Mr. Patrice apologised for the back and forth and assured him that the transfer would be done by the end of the following business day.

However, that following day Mr. Patrice advised that he was awaiting instructions from Head Office in Grenada. Mr. Mc Quilkin states that the deceased died late that night.

Mary Noel
[18] Ms. Mary Noel tendered evidence in support of Mr. Mc Quilkin’s case. Most of Ms. Noel’s evidence is like Mr. Mc Quilkin’s evidence. Her evidence indicates that she was a witness to the events with respect to the execution of the transfer letter at the home of the deceased. On 13th November 2017, Ms. Noel testifies that she prepared two transfer letters. However, the first transfer letter was rejected by Mr. Patrice, the Manager of the bank. Mr. Patrice informed her and Mr. Mc Quilkin that because of the amount of money involved he required a new transfer to be prepared and executed. Mr. Patrice advised that the new transfer letter was to be signed in the presence of a JP and must be accompanied with a letter from a medical doctor confirming that the deceased was of sound mind to give instructions.

[19] The new transfer letter dated 9th November 2017 authorised Mr. Mc Quilkin to transfer the sum of $995,262.27 from account no. 1703399 to account no. 32000049. Ms. Noel states that the contents of the letter were read over to the deceased by Mr. Adams (JP) in presence of herself, Mr. Mc Quilkin and Wilma Mc Quilkin. Thereafter, the deceased acknowledged the contents of the letter. After the deceased acknowledged the letter, she states that Mr. Adams guided the deceased to make an “X” in the area indicated for his signature. She states that to the best of her knowledge the letter provided that one-half of the money in the account was to be transferred.

Theophilus Adams
[20] Mr. Adams states that he together with Dr. Davis visited the deceased’s home to speak with him privately. While at the deceased’s home they asked Mr. Quilkin, his mother Wilma Mc Quilkin, and Ms. Noel to remain outside while they went to speak with the deceased. Mr. Adams testifies that Dr. Davis attended to the deceased in his room and after his examination, Dr. Davis pronounced him to be of sound mind.

While in the room, Mr. Adams states that he asked whether he wanted to transfer all of the monies. However, the deceased did not answer. Thereafter, he asked the deceased whether he wanted to transfer half of the money in the account with Mr. Mc Quilkin to which he answered “yes”. Therefore, a new letter of instruction was drawn up by Mr. Mc Quilkin with Ms. Noel’s assistance authorising Mr. Mc Quilkin to transfer the sum of $995,262.27 from account no. 1703399 to account no. 32000049.

(TO BE CONTINUED)

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