Aubrey Sylvester Edwards as Lawful Attorney of Gladys Victoria Edwards v Rolston Rawlins
| Jurisdiction | Antigua and Barbuda |
| Judge | Blenman J |
| Judgment Date | 29 September 2008 |
| Judgment citation (vLex) | [2008] ECSC J0929-1 |
| Docket Number | CLAIM No. ANUHPB 2005/0513 |
| Court | High Court (Antigua) |
| Date | 29 September 2008 |
IN THE HIGH COURT OF JUSTICE
CLAIM No. ANUHPB 2005/0513
In the matter of Rule 27.2 And Part 68 of the Civil Procedure Rules 2000
And In the matter of the Estate of Eleanora Dickenson (also known As "Eleanora Dickenson", also known as "Maryanne Eleanora Edwards", also known as "Ellen Dickenson"), Deceased
Mrs. Mary B. White for the Claimant
Mr. Steadroy Benjamin for the Defendant
Eleanora Dickenson, deceased, was Rolston Rawlins and Aubrey Edwards aunt; and the two of them are cousins. Aubrey lives in St. Croix and contributed financially to the upkeep of Eleanora and her sister Gladys. Gladys is Eleanor's only surviving siblingand the former brought up Aubrey. Eleanor was a lady who acquired several properties. In her late years, and from time to time, several of her nephews and nieces resided with her. From around 1998, Rolston resided with Eleanora and did several chores for her. Her sister Gladys also lived with her. Aubrey paid caregivers to assist her. However, the relationship between Rolston and Eleanora was somewhat rocky. Eleanora was advanced in age in 2002; she was 86 years old. Rolston did not get on well with the caregivers.
On the 25th July 2002, Rolston took Ms. Beverly Airall and Ms. Gloria Lake to Eleanor's home where it is alleged that she made a will, which they signed as witnesses. The purported will named him as the sole executor and leaves the bulk of her estate to Rolston and his family. No other relatives were present when the will was made. Rolston kept the will, and after Eleanora's death on 6th June 2004, he sought to have the will probated.
In his capacity as Gladys' attorney, Aubrey has brought these proceedings and seeks to have the Court declare the will invalid. He seeks a declaration from the Court that he is Gladys' lawful attorney. Aubrey's main contention is that Eleanora did not know what she was signing. In support of this contention, he asserts that several years before, Eleanora had disposed of some of the land referred to in the will and that she never intended to allow Rolston and his siblings to benefit from her estate.
Aubrey also contends that the two persons who witnessed the execution of the will, Ms. Lake and Ms. Airall, did not know that they were signing a will and, in any event, they signed the will before Eleanora. He also contends that Eleanora did not know or approve of the contents of the will and that it was made under suspicious circumstances.
Thirdly, Aubrey asserts that the will was obtained by undue influence exerted by Rolston on Eleanora, who at the time was feeble. He also alleges that it was always Eleanora's intention that Gladys should inherit the bulk of her property. In contradistinction, the dispositions in the will are inconsistent with Eleanora's long held intentions.
Accordingly, Aubrey contends that the will ought not to be probated, and seeks a declaration that Gladys be allowed to apply for Letters of Administration of Eleanora's estate.
Alternatively, he asks the Court to allow Gladys to apply for the Probate of an earlier will, allegedly made by Eleanora.
Contending that the will is valid, Rolston says that at the time when Eleanora made the will, she was of sound disposing mind and memory. Rolston maintains that the will was validly executed by Eleanora and that at the time of her doing so, she knew and approve of the contents. He alleges that the will was made based on her instructions.
Further, he maintained that Eleanora executed the will in the presence of Ms. Airall and Ms. Lake and that they were both aware that they were signing the will as witnesses.
Finally, he is adamant that he exerted no influence or pressure on Eleanora in order for her to execute the will.
Issues
Several issues have been raised by the parties. I have sought to crystallise them as follows:
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(a) Whether Eleanora had the testamentary capacity at the time of making the purported will.
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(b) Whether the will was properly signed and witnessed.
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(c) Whether Eleanora knew and approved of the contents of the will.
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(d) Whether the will was obtained by Rolston's undue influence.
Evidence
A number of persons deposed to affidavits in support of Aubrey's claim. However, a few of them did not attend Court to be cross examined. Mr. Aubrey Edwards, Ms. Dorcas Kirby, Ms. Nora David, Mr. Sylvester Joseph, Dr. Gloria Mason-Thomas, Ms. Ernestine Terry,Ms. Marzel Marsh, Ms. Gloria Lake and Ms. Beverly Airall having desposed to affidavits, were cross examined. Mr. Rolston Edwards deposed to an affidavit in support of his defence. The parties have also placed before the extensive volumes of agreed documents.
Law
Section 7 of the Wills Act Cap 473 Laws of Antigua and Barbuda provides that
"no will shall be valid unless it shall be in writing; it shall be signed at the foot, or end, thereof by the testator, or by some other person in his presence and by his direction, and the signature shall be made, or acknowledged, by the testator in the presence of two or more witnesses at the same time".
Mr. Steadroy Benjamin's submissions
Learned Counsel Mr. Steadroy Benjamin argued that the will was validly executed. He said that Eleanora had the testamentary capacity when she signed the will. She also knew of the contents of the will and approved of it. In fact, she authorised the will to be drafted.
Learned Counsel Mr. Benjamin took issue with the credibility of the witnesses, Ms. Airall and Ms. Lake, who attested the signing of the will, when they said that they were unaware that they had witnessed the deceased signing the will, until days after. Learned Counsel, Mr. Benjamin asked the Court to attach very little weight to Ms. Airall and Ms. Lake's evidence when they said they did not know they were singing a will. He said that Ms. Airall, who is the Deputy Accountant General and Ms. Lake, who is a Senior Civil Servant for over 25 years, did not speak the truth when they both said that they did not know what they were signing. He asked the Court to find that Eleanora signed the will and it was witnessed by Ms. Airall and Ms. Lake, who were both present at the time of Eleanora's signing.
Mr. Benjamin stated that based on the evidence; there can be no doubt that at the time of the making of the will, Eleanora had the requisite testamentary capacity. In support of his contention, he referred toBanks v Goodfellow [1870] LR 5 QB 549. He maintained that at the time of making the will and giving instructions for the will to be made, Eleanora was of sound disposing mind and memory.
Mr. Benjamin argued that based on the totality of the evidence; there can be no doubt that Eleanora had the mental capacity at the date of the execution of the will. He also alluded to the fact that Eleanora executed a lease in favour of Aubrey one month after she had made the will, on 25th July 2002; this indicates that the time of executing the will, Eleanora had the requisite testamentary capacity.
Mr. Benjamin stated that where a will has been drawn in accordance with the instructions of the testator, whilst of sound disposing mind, a perfect understanding of all the terms of the will, at the time of the execution of the will may not be necessary. SeePerera v Perera [1901] AC 354 [1901] AC 354 PC.
Mr. Benjamin submitted that there are no suspicious circumstances which could lead the Court to declare the will invalid. He referred the Court toBarry v Butlin [1838] 12 ER 1089 [1838] 12 ER 1089;Tyrell v Painton [1894] P 159; Re R [1950] 2 All ER 117 and Wintle v Nye [1959] 1 WLR 291, in support of his contention.
Mr. Benjamin next argued that Eleanora knew and approved of the contents of the will. He said in so far as there is no ample evidence that the will was executed by the testator who had the testamentary capacity, Rolston "has discharged the prima facie burden placed on him that Eleanora knew and approved of its contents."
Finally, Mr. Benjamin maintained that there was no evidence adduced by Aubrey in support of his contention that Rolston exerted undue influence on Eleanora. Counsel said that "undue influence ought not to be put forward unless the party who pleads it has reasonable grounds upon which to support it". SeeSpiers v English [1907] P 122 [1907] P 122. On the evidence, there was no force or coercion exerted on Eleanora at the time of making the will, therefore Mr. Benjamin asserts there was no undue influence. See Partfitt v Lawless [1872] LR 21.
Ms. Mary B Whyte's submissions
Learned Counsel Ms. Mary B Whyte argued that the will is invalid. Counsel urged the Court to accept that Eleanora did not have the testamentary capacity; did not have knowledge of the contents of the will and therefore was unable to approve the contents. She says that at the time Eleanora signed the will, she was senile.
Further, Ms. Whyte said that the will is invalid since the persons who witnessed the will did not sign it after Eleanora. The witnesses signed before Eleanora. Ms. Whyte also argued that there are suspicious circumstances in the case at bar, which Rolston has the duty to remove and he has failed to do so. She said that it is passing strange that some of the property which the testatrix is alleged to have devised in the will, she had disposed of several years before 2002. In addition, the dispositions in the will are inconsistent with Eleanora's long expressed view that her sister Gladys should be the main beneficiary of her assets. Another matter that arouses great suspicion, Counsel argued, is the fact that the will having been made in 2002, Rolston kept this information to himself until after her death in 2004. Another matter that attracts great suspicion is the fact...
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