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The battle for property on Williamson Road in the city

Attorney-at-law Deborah St Bernard – was one of the defendants in the case

The wife of a former Grenada government minister has lost a high court case involving her attempt to take possession of a property on Williamson Road in St. George.

Janice Gilbert, the wife of former Public Utilities Minister Joseph Gilbert of the 2008-13 National Democratic Congress (NDC) lost in a court battle against Larria Alexander and female attorney-at-law Deborah St Bernard.

The court battle centers on two Wills in the name of Doris Catherine Alexander dated January 20, 2004 and a later Will dated July 12, 2008 – one in the possession of Alexander and another held by Gilbert.

The deceased is said to have made an earlier Will in which Alexander, described as her adopted daughter, was the beneficiary of the property but Gilbert produced another will in which she was identified as a cousin of the homeowner and was left the property.

Gilbert took the matter to court in order to evict Alexander from the property.

She retained attorney-at-law Ruggles Ferguson, KC while former Solicitor General Michael Lindo represented Alexander and St Bernard.

Gilbert claimed that the 2008 Will was the last will of the deceased but the defendants were insisting that the validity laid with the 2004 Will.

As a public service, THE NEW TODAY reproduces the judgment delivered by female high court judge, Justice Agnes Actie on the court battle:

JUDGMENT
[1] ACTIE, J.: This action concerns the validity of a Will of Doris Catherine Alexander (hereinafter referred to as “the deceased”) dated 20th January 2004 and a later Will dated 12th July 2008. The main difference in the two Wills is that under the 2004 Will, the deceased left her dwelling home to the second defendant who is her adopted daughter while in the second Will the said dwelling home was left to the claimant who is the second cousin and purported caregiver of the deceased.

[2] The claimant contends that the 2008 Will is the last will of the deceased whereas the defendants seek to pronounce for the validity of the 2004 Will.

Claimant’s case
[3] The claimant, Janice Gilbert, is the executrix of the purported 2008 Will (hereafter referred to as “the 2008 Will”). The deceased died on 10th April 2009 and the claimant obtained a Grant of Probate of the 2008 Will on 14th October 2009. Probate of the deceased’s previous Will dated 20th January 2004 (hereafter “the 2004 Will”), was obtained by the first defendant on 26th August 2009.

[4] In claim form filed on 16th January 2018, the claimant claims:

(1) A declaration that the will of Doris Alexander, deceased, made on 12th July 2008 is the Last Will and Testament of Doris Alexander;

(2) A declaration that the second defendant’s act of taking possession of the property situated at Williamson Road in the parish of St. George measuring 1,850.30 Sq. Ft., together with the building thereon (hereafter “the property”) which formed part of the deceased’s estate amounted to trespass to the property;

(3) An order setting aside the grant of probate to the first defendant, dated 26th August 2009 pursuant to a Will of Doris Alexander dated 20th January 2004;

(4) An order granting the claimant possession of the said property together with a permanent injunction restraining the defendants, their servants and/or agents howsoever named from entering onto the property or interfering with the quiet enjoyment of the property by the claimant her heirs and successors;

(5) Damages for trespass to property against the second defendant; Interest; Such further or other relief; and Costs.

[5] By a “Notice to Quit” made 16th January 2017, the claimant gave notice to the second defendant to deliver up possession of the property on 28th February 2017.The second defendant refused to accede, representing to the claimant that the property was left to her by the 2004 Will.

[6] The claimant avers that the 2008 Will is valid and that it revokes all former wills, including the 2004 Will. The claimant contends therefore that the Grant of Probate to the first defendant is void.

Defendants’ case
[7] The defendants in their defence and counterclaim deny that the claimant was the second cousin and caregiver of the deceased. They state that the claimant was a distant cousin.

[8] The defendants contend that the 2008 Will and the Grant of Probate thereof is a false and invalid document. The defendants contend that the 2008 Will was not duly executed in accordance with the provisions of the Wills Act Cap 340 of the 1990 Revision of the Laws of Grenada. The defendants state that the deceased did not sign nor voluntarily or effectively place her mark on the 2008 Will. The defendants contend that the deceased was elderly, infirm and suffering from severe arthritis in her hands.

[9] The defendants further contend that the 2008 Will violated the Golden Rule by the lack of witnessing and approving of the endorsement of the Will by a medical practitioner satisfying themselves as to the capacity and understanding of the deceased and recording their examination and findings. The defendants further state that at the time of the 2008 Will, the deceased was not of sound mind, memory and understanding.

[10] The defendants also argue that the 2008 Will was procured by the undue influence of the claimant over the deceased.

[11] The defendants aver that the property was the only or most valuable asset that the deceased owned, and that the effect of the 2008 Will is that the deceased revoked the 2004 Will which devised the property to her only child, the second defendant, and devised the property to a distant cousin.

[12] The defendants counterclaim:

(1) That the court pronounce against the 2008 Will;

(2) That the court pronounce for the force and validity of the 2004 Will;

(3) A declaration that the Grant of Probate to the first defendant is valid and in effect;

(4) An order that the Grant of Probate to the claimant be cancelled and set aside;

(5) An order that the purported Deed of Assent and Conveyance dated 20th January 2010 and recorded in the Deeds and Land Registry between the claimant as executrix and the claimant as devisee be cancelled and set aside;

(6) A declaration that the second defendant is the sole person entitled to the property under the 2004 Will;

(7) An injunction restraining the claimant from entering, leasing, selling, mortgaging, encumbering, injuring or in any way dealing with the property;

(8) Any other relief the court deems just, and Costs.

Legal Analysis
[13] The claimant asserts that the 2008 Will is the last will and testimony of the deceased. The defendants on the other hand assert that the 2008 Will is invalid.

[14] The defendants challenge the Will on several grounds namely: (i) it was not duly executed; (ii) it was contrary to the Wills Act; (iii) it was contrary to the Golden Rule; (iv) it was made without the deceased receiving independent legal advice; and (v) it was procured through the undue influence of the claimant.

[15] It has been established that in all cases, the party propounding the Will is bound to prove that the Will in question does contain the last will and testament of the deceased. The onus of proving that the Will propounded was executed as required by law is on the claimant or party propounding it. As a corollary, it is for the claimant to prove that the 2008 Will was properly executed and is the last testamentary disposition of the deceased.

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[16] It has been further been established that a court ought not to pronounce in favour of a Will that is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testatrix. The court should be satisfied on the totality of the evidence that at the material time of making a Will, the testatrix was able to comprehend of her own volition the nature of her act and its effects of the dispositions in her will.

Whether the 2008 Will is valid
[17] Section 15 of the Wills Act CAP 340 states that a Will can be revoked by another Will or codicil:

“No will or codicil or any part thereof shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same and executed in the same manner in which a will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his or her presence and by his or her direction, with the intention of revoking it”

[18] The 2008 Will includes a revocation clause revoking all former wills or testamentary dispositions made by the testator. It is pertinent to discuss whether the 2008 is valid and so effectively revokes the 2004 Will on the grounds alleged by the defendants.

Want of due Execution – The Golden Rule
[19] The deceased was removed from her home and taken by the claimant to the Hilarion Home for the aged. It is the evidence of both parties that the deceased’s hands were affected by severe arthritis. King’s Counsel, Mr. Ruggles Ferguson argues that the deceased, although brought to the home, would not be considered old. It is the evidence, and the court accepts, that the deceased was feeble and unable sufficiently care for herself because of her arthritic hands and had to be assisted by her neighbours and her best friend, Marita Bailey.

[20] The defendants contend that the legal practitioners who prepared the Will failed to comply with the Golden Rule. The Golden Rule as defined in Tristram and Coote’s reads: to

“When a testator is elderly and infirm, his will should be witnessed and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and who records his examinations and findings.”

[21] Our Court of Appeal in Anne-Marie Mac Leish v Vison Albert “Bert” Marryshow stated:

“The application of the Golden Rule assists in the avoidance of subsequent disputes as to capacity. However, where the Golden Rule was not followed, and the court has to resolve a dispute as to capacity, non-compliance with the Golden Rule does not demonstrate a lack of capacity. The issue must be decided by the court by applying the correct legal principles to the court’s findings of fact.”

[22] Briggs J in Richard Key and another v Jane Frances Key and another4 stated that: “Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasized, is to assist in the avoidance of disputes, or at least in the minimization of their scope.”

[23] There are no medical reports proffered by the claimant and the defendants with regard to the capacity of the testatrix. It is also the evidence of Mrs. Lilian Forde, one of the attorneys who drafted the 2008 Will, that she did not engage the services of a medical doctor to determine the competency of the testatrix as she was of the view that the deceased was of sound and disposing memory.

[24] In Zorbas v Sidiropoulous (No 2)5, a matter before the Court of Appeal of New South Wales cited in Anne Marie Mac Leish & Anr v Avison Marryshow6, it was observed that:

“Medical evidence as to the medical condition of a deceased may of course be highly relevant and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses.”

[25] The defendants argue that the 2008 Will ought to have observed the ‘Golden Rule’, which states that when a testator is elderly and infirm his Will should be witnessed and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and who records his examination and findings. However, this rule merely provides guidance, and is not a substitute for the established tests of capacity and knowledge of approval8. Thus, this is a matter for the court to apply common sense judicial judgment based on the whole of the evidence9 as to whether the testatrix had a sound and disposing mind, memory and understanding and acted as a free agent.

[26] In Aubrey Edwards v Rolston Rawlins10, Her Ladyship, Blenman J, as she then was, stated as follows:

“In order for a will to be valid, the Court should be satisfied that the testatrix understood three matters: the testatrix must understand the broad effect of her wishes being carried out; the extent of the property she is disposing and the claims to which she ought to give effect. The testatrix must have testamentary capacity at the time when she executes the will. See Banks v Goodfellow. This requires the Court to be satisfied that the testatrix had [sic] the following – (a) The nature of the act and its effects; (b) The extent of the property of which he is disposing; (c) The claims to which he ought to give effect.

The legal burden of proof always lies upon the person seeking to propound a will to prove that the testatrix had the testamentary capacity at the time. If that person fails to do so, the will would not be admitted to probate. The testatrix must have known and approved of the contents of the will. The will must be that of a free and capable testatrix exercising her genuine free choice and not a result of undue influence by another.”

[27] The writers of Tristram and Coote’s Probate Practice state that:

“Unless suspicion attaches to the document, eg where it is signed by mark, or where the signature indicates extreme feebleness, the testator’s execution is sufficient evidence of his knowledge and approval.”

[28] The burden of proof of the testator’s knowledge and approval lies on the party setting up the Will. The burden is discharged prima facie by proof of capacity and due execution.

[29] Tristram and Coote’s state that:

“It is not the law that in no circumstances can a solicitor or other person who has prepared a Will for a testator take a benefit under it; but that fact creates a suspicion that must be removed by the person propounding the Will. In all cases the court must be vigilant and jealous.”

[30] Where a Will is prepared in suspicious circumstances, the onus is cast upon the person propounding it to remove such suspicion, and to prove that the testator knew and approved of its contents. A person who is instrumental in preparing a Will under which he is a beneficiary has to satisfy the court on a balance of probabilities that the testator knew and approved the contents.

TO BE CONTINUED

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