Melbourne Smith and Lillian Brown v Elridge Brown

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman, J
• Judgment Date: 30 September 2008
• Judgment citation (vLex): [2008] ECSC J0930-2
• Court: High Court (Antigua)
• Docket Number: CLAIM NO: ANUHCV2004/0268
• Date: 30 September 2008

[2008] ECSC J0930-2

IN THE HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV2004/0268

In The Matter Of The Estate Of Claribel Margaret Stephens Also Known As Ruth Stevens, Deceased.

Between:

Melbourne Smith

First Claimant

Lillian Brown

Second Claimant

and

Elridge Brown

Defendant

Appearances:

Ms. Asheen Joseph for the Claimants

Ms. Sherrie-Ann Bradshaw for the Defendant

Blenman, J

1 Mr. Melbourne Smith, Ms. Lillian Brown and Mr. Elridge Brown are the children of Claribel Margaret Stephens also known as Ruth Stevens. Ms. Stephens died on 18^th May 2003 and after her death, Elridge produced a will dated the 2^nd December 2002 which he says Ms. Stephens made. Elridge is named as the sole executor and the beneficiary in the will. The Grant of Probate, of the will, was made on the 14^th January 2004.

2 Melbourne and Lillian have filed these proceedings and they say that the will is invalid on the ground that Ms. Stephens was not of sound disposing mind and memory at the time she made the will. They also seek declarations that the will is invalid on the basis that Elridge exerted undue influence on Ms. Stephens; the deceased lacked the knowledge and approval required, and finally that the will was not properly executed.

3 Melbourne and Lillian also seek to have the Grant of Probate of the alleged will revoked.

4 Elridge disputes that the will is invalid. He asserts that when Ms. Stephens made the will, she was of sound disposing mind and memory. He denies that the will was improperly executed or that he exerted any undue influence on her. He contends that, at the time of executing the will, Ms. Stephens knew and approved of the contents of the will.

5 Issues

The issues that arise for the Court's consideration are as follows:

• (1) Whether, at the time of making the will Ms. Stephens was of testamentary capacity.

• (2) Whether Ms. Stephens knew and approved of the contents of the will.

• (3) Whether, at the time of making the will, Ms. Stephens was acting under Elridge's undue influence.

• (4) Whether the Probate of the alleged will that was granted on the 14^th January 2004 should be revoked.

6 Law

Section 7 of the Wills Act Cap 473 Laws of Antigua and Barbuda states 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 hisdirection, and the signature shall be made, or acknowledged, by the testator in the presence of two or more witnesses at the same time".

7 Section 21 of the Wills Act states:

"No obliteration, interlineation, or other alteration, made in any will after the execution thereof, shall be valid, or have any effect, except so far as the words, or effect, of the will, before such alteration, shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration thereof, shall be deemed to be duly executed if the signature of the testatrix and the subscription of the witnesses be made in the margin, or on some other part, of the will, opposite, or near, to such alteration, or at the foot or end of, or opposite to, a memorandum referring to such alteration and written at the end, or some other part, of the will".

8 Evidence

Deacon Llewely Myers, Mr. Luther Pelle, Mr. David Williams and Ms. Lillian Brown gave evidence on behalf of the Claimants and they were all cross examined. Mr. Elridge Brown and Attorney-at-Law, Mr. Arthur Thomas, Dr. Marlene Joseph, provided evidence on behalf of the defendant and they too were cross examined.

9 Ms. Bradshaw's submissions

Learned Counsel Ms. Sherrie-Ann Bradshaw urged the Court to accept the evidence of Dr. Marlene Joseph and Attorney-at-Law Mr. Arthur Thomas and find that on the date of the making of the will, Ms. Ruth Stephens had the requisite testamentary capacity. In support of her contention, learned Counsel relied onArthur v Bokenham [1708] 11 MOD RAP 148; Banks v Goodfellow [1870] LR 5 QB 256; O'Connell v Shortland [1989] 515 ASR 37 and Goode v Carapeto & Goode [2002] WTLR 801 at 841.

10 Learned Counsel Ms. Bradshaw referred toBanks v Goodfellow ibid and stated that unsoundness of mind may be occasioned by physical infirmity or advancing years as distinguished from mental derangement and the resulting defect of intelligence must be reduced to such an extent that the proposed testatrix does not appreciate the testamentary acts in all its being. In the case at bar, there is evidence that at the time of the execution of the will, the testatrix had the testamentary capacity. Learned Counsel asked the Court to place great store on Dr. Marlene Joseph's evidence, when the doctor stated that she examined Ms. Stephens on 21^st November 2002 and she found her to have a sound mind and memory.

11 Counsel accepted that the infirmity of the testatrix will strengthen certain presumptions which arise against the will in any case, for example, where the will is contrary to the previously expressed intentions of the testatrix as to her testamentary dispositions. SeeHarwood v Baker [1840] 3 Moo PC 282. The testatrix capacity need not be perfect. See Barrett v Kaspry KLTL 3/7/2000. Ms. Bradshaw said, however, that the combined effect of the evidence clearly shows that Ms. Stephens had the testamentary capacity at the material time.

12 Knowledge and Approval

Learned Counsel Ms. Bradshaw said that a testatrix must know and approve the contents of the will. If a will has been properly executed, it is presumed that the will is valid on this ground and, generally speaking, it will have to be proved on the balance of probabilities that the testatrix did not know and approve of the contents of the will. However, if the circumstances surrounding the preparation of the will are such to "excite the suspicion of the Court" (i.e. they are unusual for some substantive reason), the burden of proof can pass to the person seeking to rely on the will.

13 Learned Counsel Ms. Bradshaw also said that the burden of proof of the testatrix's knowledge and approval lies on the party setting up the will:Barry v Butlin (1838) 2 Moo PCC 480 at 482; Cleare & Foster v Cleare (1869) LR 1 P&D 655. The burden is discharged prima facie by proof of capacity and due execution but where this prima facie presumption is met by the cross examination of the witnesses, the party propounding the will must prove affirmatively that the testatrix knew and approved of its contents. See Tyrell v Painton (1884) P 151 at 157, CA. Counsel, in support of her contention that Ms. Stephens knew and approved the contents, referred to Mr. Thomas' evidence that after he drafted the will, it was read over to Ms. Stephens and this having been done; she had knowledge and approved of the contents of the will.

14 Next, Learned Counsel Ms. Bradshaw submitted that Counsel for the Claimants sought to, without success, discredit the evidence of Mr. Thomas by the evidence of Mr. David Williams and Mr. Luther Pelle, the two witnesses to the will. Ms. Bradshaw asked the Court to accept the evidence of Mr. Thomas being credible and honest, and reject the evidence of the witnesses for the Claimants.

15 Undue influence

Learned Counsel Ms. Bradshaw said that the burden of proving undue influence is on the person alleging it. In this case, it is the Claimants. Strong evidence is required since the allegation is a serious one. If a person makes the allegation without sufficient evidence, the Court may penalize them in costs. SeeRe Cutcliffe's Estate [1959] PC andRe Good [2002] WTLR 801.

16 InWingrove v Wingrove (1885) 1 PD 81, Sir James Hannen said in the course of his address to the jury at p. 82:

"To be undue influence in the eyes of the law there must be—to sum it up in a word—coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person's favour, because if the testatrix has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testatrix is coerced in doing that which he or she does not desire to do that it is undue influence.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of lifemay have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence".

17 Allegations of undue influence or coercion are serious ones although the ordinary civil standard of proof is still the same, namely, by reference to the balance of probability. However, even though the standard is the same, inRe H and Others (minors) (1996) AC 563, Lord Nicholls of Birkenhead said at p. 586:

"The balance of probabilities standard means that a Court is satisfied an event occurred if the Court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the Court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the Court concludes that the allegation is established of the balance of probability. Fraud is less likely than negligence… Built into the preponderance of probability...