Retired nurse Corine Clara has lost a major court case and has to repay a huge sum of money to the estate of an elderly lady who had appointed her as a guardian.
The decision was handed down by female high court judge, Agnes Actie on May 31 after hearing arguments from defense attorneys, Queen’s Counsel Celia Clyne-Edwards representing Clara and Pauline Phillip-Hannibal for the claimant, Mable Philips Nancy Green.
It is clear from the ruling that Justice Actie had reservations about the evidence given to the court by the retired nurse on the spending of the money.
The judge said: “During the trial, I paid particular attention to Corine Clara’s demeanour. My assessment of the witness was that she was untruthful and evasive to the questions asked during cross examination.
When asked “what she do with the money withdrawn”. She sheepishly responded “I did stuff” but did not lead a shred of evidence to indicate what she did with the funds withdrawn from the accounts.
Corine’s assertion that Mable (the elderly lady) gave her the money for her own use and to do as she pleased is not supported by the evidence. The widow’s pension appeared to have been Mable’s only source of income. It would be inconsistent for Mable to have given Corine the money for her own use when the same money was required to pay for Mable’s stay at the home along with her medical and funeral expenses”.
The high court judge ordered the retired nurse to repay over EC$300, 000.00 within a one-month period and to give an account for the spending of the money from the bank account.
Following is an edited version of Justice Actie’s ruling on the matter:
JUDGMENT
ACTIE, J: The two claims heard together raise the issue of whether a joint bank account was a convenience account for which the co-signatory is required to give an account to the primary account holder.
I will refer to the parties by name for ease of reference considering the two claims filed by the different parties. Mable Philips who was ninety-four (94) years old at the time of filing the claim in 2013 met her demise in 2018. Nancy Mc Kenzie Greene, stepdaughter of Mable Phillips, was substituted in a representative capacity as executrix on 20th May 2019.
In Fixed Date Claim GDAHCV 2013/0362 filed on July 4,2013 and amended on October 31,2013, Mable Philips acting through her attorney Nancy McKenzie Greene by power of attorney claims against Corrine Clara seeking:
(1) An account of all monies withdrawn by Corine Clara from (Mable’s) account that was not used for her benefit between January 1, 2007 to May 16, 2013 and
(2) The repayment of the sum of $382,439.80 or such sums wrongfully applied by Corine Clara for her own use.
It is the pleaded case that Mable returned to Grenada from the USA after the death of her husband. Being advanced in age and not having any close blood relative alive, Mable checked herself into the St. Martin’s Home for the aged at Crochu, St. Andrew, Grenada.
In 2004, Mable opened a joint account with Corine Clara at the Republic Bank. Mable monthly widow’s pension of approximately $3524.66 was deposited in the account. In 2006, Mable also appointed Corine Clara by Power of Attorney, to handle her day-to-day affairs.
Corine was authorized to pay the St. Martin’s home and other expenses for Mable from the said account.
In March 2013 Mable’s stepdaughter, Nancy Mckenzie Greene, came to Grenada and removed Mable from the St. Martin’s home with the intention of taking her back to the USA. On 13th March 2013, Corine filed a claim seeking to be appointed as Mable’s guardian and for an order preventing Mable’s removal from Grenada.
By an order made on 17th May 2013, Mable was declared to be mentally competent and was given liberty to travel. The claim was discontinued and Corine was ordered to deliver the remaining funds on the account to Mable. Corine closed the account and delivered a bank draft to Mable in the sum of $21,157.39.
A bank statement obtained for the period of 2006-2011 disclosed that Corine made large withdrawals from the account and continued during the period of filing the claim on 13th March 2013 for guardianship. On 31st March 2013, the account had a balance of $993.76. Mable contends that Corine withdrew a total sum of $382,439.80 which was not put to Mable’s use.
THE DEFENCE
Corine Clara’s in her filed defence challenges the efficacy of the power of attorney used by Nancy Mc Kenzie Greene to commence the claim. She also challenged the revocation of the power of attorney appointing her as agent for Mable.
Corine alleges that both documents failed to meet the requirements of Section 10 of the Deeds and Land Registry Act. Corine also contends that the Justice of the Peace, before whom the power of attorney and revocation of power of attorney were executed, was not an official attestor.
Corine states that Mable previously had a joint account with one Ruby Gilbert who withdrew large sums of money from the account. With respect to the balance of $7000.00 in the account and the $21,000.00 delivered, Corine contends that she was advised by her attorney- at- law not to keep so much money in a chequing account which carried little interest.
She states that Mable withdrew $14,000.00 which was kept in another account. She states that, upon the determination of the suit in 2013 and in keeping with the consent order, the balance in the account together with the sum of $14,000.00 was handed to Mable.
Corine denies that the funds withdrawn were not for Mabel’s benefit. In response to the claim for the accounting, Corine states that Mable gave her full authority over her affairs in Grenada and USA over all others.
Preliminary point
From the onset, the defendant (Corine) challenged Nancy Mckenzie’s capacity to initiate the claim on behalf of Mable Phillip. Corine contends that the power of attorney signed by a Justice of the Peace, who is not an official testator, is invalid.
She further contends that the power of attorney is not registered and accordingly fails to meet the standard of proof required by Section 10 of The Deeds and Land Registry. The revocation of the power of attorney is challenged on the same grounds.
Ms. Pauline Hannibal, counsel for Mable in response relies on Section 12 of the Magistrates Act Cap 77. Section 12 (2) of Act provides that “every justice of the peace shall have the same power as a magistrate and to take affidavits and administer oaths”.
Counsel further relies on Section 84 of Evidence Act1 which reads: “The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by, a notary public, or any court, judge, magistrate, was so executed and authenticated.
Counsel submits that Section 10 of the Deeds and Lands Act requires the registration of a power of attorney affecting land. Counsel avers that both the power of attorney and the revocation of the power of attorney attested before the Justice of the Peace are not required to be registered as they do not deal with transactions affecting land.
The procedural challenges can be dealt with succinctly. An oath is simply a legal acknowledgment of the authenticity of a document and a verification of the efficacy of that process.
The combined effect of Section 12 (2) of the Magistrates Act and Section 84 of Evidence Act allows the Justice of the Peace to act as an attesting witness in verifying the acknowledgment of the parties executing a document.
The power of attorney and the revocation of the power of attorney are not affecting any dealings with land and need not be registered in accordance with Section 10 of the Deeds and Lands Act.
The court accepts that the power of attorney as a properly executed instrument giving Nancy Mckenzie Greene legal standing to commence the claim on behalf of Mable Phillips.
The central issue to be determined in claim GDAHCV 2013/0362 is nature of the joint account in dispute and whether it was a convenience account.
Ms. Pauline Hannibal posits that the account was opened for the convenience of Mable Philips and relies on the common law principles enunciated in Sabina James v Marguerite Desir etal 2 and Archibald Samuel v Ronelta Dagma Dailey in relation to joint accounts set up for convenience.
Ms. Celia Edwards Q.C., for the defendant contends the claimant’s claim is bound to fail considering the binding Privy Council decision in Whitlock & Anr v Moree3 delivered in 2017, after this case was filed in 2013.
Ms. Edwards Q.C. contends that the contract document signed by the parties on the opening of the account is determinative of the beneficial interest and negatives the assertion of convenience or trust. Counsel states that the withdrawals made by Corine were not made as an agent of Mable but as principal as of right.
The standard bank form signed by both parties on 9th December 2004 provides as follows:
“THE NATIONAL COMMERCIAL BANK OF GRENADA LIMITED”
The undersigned, having opened a savings deposit account numbered as indicated above with the aforementioned branch of THE NATIONAL COMMERCIAL BANK OF GRENADA LIMITED (herein called the Bank) in our joint names, in consideration thereof do hereby agree each with the other or others of us and also with the Bank that all moneys now or which may be hereafter deposited to the credit of the said account, and all interest thereon, shall be and continue the joint property of the undersigned with right of survivorship. Each of the undersigned, in order to constitute effectually the said joint deposit account, hereby assigns and transfers to the undersigned jointly any and all moneys which may have been heretofore or may now or hereafter be deposited to the credit of the said account, together with all interest which may accrue thereon. Each of the undersigned hereby authorizes the Bank to accept from time to time as a sufficient discharge for any sum or sums withdrawn from the said account any receipt, cheque or other voucher signed by any one of the undersigned, without any other signature or the consent of any others of the undersigned thereto.
The undersigned jointly and severally agree with the Bank that the death of one or more of the undersigned shall not affect the right of the survivors or any one of them, or of the sole survivor, to withdraw all of the said moneys and interest from the Bank and to give a valid or effectual discharge or receipt therefor.
The undersigned jointly and severally agree with the Bank to Pay to the Bank forthwith upon demand any overdraft, indebtedness or liability in its favour in connection with or arising out of the operation of the said account.
Unless otherwise expressly directed in writing, the Bank is hereby authorized by the undersigned and each of them to deposit to the credit of the said account all moneys and the proceeds of all cheques, promissory notes, bills of exchange, securities, coupons and orders for the payment of money received by the Bank payable to or for credit or account of any one or more of the undersigned.
The signed document was witnessed by the Bank’s officials. Ms Rena Clarke, bank representative, gave evidence at the trial. She produced contemporaneous manuscripts made at the time of the opening of the account as follows:
“ New A/c opened with Ms Mable Philips who is presently residing at the St Martin home at Crochu St Andrew’s.
Ms Philipps indicated to me that she would like Ms Clara to pay for her funeral expenses and also take care of her bills that may arise from time to time.
Ms Philips also made it clear to us that she is getting old and that she wants to put everything in place for when she dies. “
A declaration of source of funds for the account number 11123778 with a transaction total of $60,000.00 reads:
Funds transferred from acc. No 11073088 in the name of Mable Phillips into new account in the name of Mable Phillips & or Corrine Clara to enable payments of bills etc.” “
The remarks column of the form provides:
“Ms. Phillips is 87 yrs old and is a resident of the St. Martin’s Home Crochu,.She indicated that funds she would like Clara to take care of her funeral arrangements. ie on her visit.
A further note provides:
“Ms Mable Phillip came to the bank with Ms Clara to open a new account to handle what she said to be unforeseen expenses (eg Health) and also that she was responsible for her funeral expenses when she pass away. She currently has no other relative to take care of her in Grenada and has given that responsibility to Ms Clara.
Ms. Celia Edwards Q.C. contends that the opening document constitutes the full terms of the agreement between the parties and the court cannot look to any other evidence to determine the nature of the account.
Ms.Hannibal, posits that the Privy Council decision in Whitlock v Moree can easily be distinguished from the case at bar. Counsel states that the sole question the Board had to determine was whether upon the death of account holder, who provided all the money on the account, formed part of the deceased estate by resulting trust.
Counsel contends that the issue in the case at bar does not concern right of survivorship. It is an action brought during Mable’s lifetime seeking an account of funds taken from the account that were not put to her use.
I think there is much force in Ms Hannibal’s assertions. The Board’s decision in Whitlock v Moree and the authorities cited in that judgment all dealt with the beneficial interest on joint co-ownership under the survivorship principle under joint tenancy.
The Board concluded that the signed document where parties to a joint account have declared their interests is determinative of the beneficial interest, pending any subsequent variation of them by agreement or otherwise.
The Board also said that the opening document can be challenged if a case of mistake or non est factum is being deployed, or on the basis of fraud, duress, undue influence, misrepresentation and the like, or if it is sought to be rectified.
The Board decision was clearly dealing with beneficial interest upon the death of the account when it said at paragraph 33, “If the dispute is about beneficial survivorship, one of the original account holders will have died, and be unable to give direct evidence of intention. If the presumption of a resulting trust would otherwise leave the money beneficially part of the estate of the first to die, evidence of intention by the survivor will always be self-serving”.
Click here to read Part II.