Anthony Orville Patrick Bryan v Gail Sherry-Ann Padmore

JurisdictionBarbados
JudgeMadam Justice Jacqueline A. R. Cornelius
Judgment Date18 April 2024
Neutral CitationBB 2024 HC 9
Docket NumberClaim No. CV 0085 of 2021
CourtHigh Court (Barbados)

In the Matter of the Estate of Sir Anthony Theophilus Bryan (deceased),

In the Matter of the Succession Act, Cap. 249, of the Laws of Barbados,

And in the Matter of the Supreme Court (Civil Procedure) Rules, 2008, Part 68.

Between:
Anthony Orville Patrick Bryan
First Claimant
Alvin David Bryan
Second Claimant
Allan Richard Bryan
Third Claimant
and
Gail Sherry-Ann Padmore
First Defendant
Sean Frederick Eteen
Second Defendant
Natalie Renee Browne
Third Defendant
Before

The Honourable Madam Justice Jacqueline A. R. Cornelius, Judge of the High Court.

Claim No. CV 0085 of 2021

IN THE SUPREME COURT OF JUDICATURE

IN THE HIGH COURT

CIVIL DIVISION

Appearances:

Mr. Keith Scotland of Astoria Law Inc., Attorney-at-Law for the Second Claimant.

Ms. Vere P. Brathwaite of Hampton Chambers, in association with Mr. Roger C. Forde, S.C. and Mr. René A. Forde, Attorneys-at-Law for the First Defendant, Second Defendant, and Third Defendant.

DECISION
1

In this matter the First Defendant, the Second Defendant, and the Third Defendant (the “Defendants”) have made applications pursuant to CPR Rule 26.3. The Second Claimant has made applications under CPR Rule 26.1(2)(b) (the “case management application”).

2

The First Claimant, the Second Claimant, and the Third Claimant (the “Claimants” are brothers, and have challenged the validity of the Will of Sir Anthony Theophilus Bryan, their father, and in this application and the Defendants seek to strike out the fixed date claim form.

3

However, on 11 July 2023, the First Claimant and the Third Claimant wholly discontinued their action against the Defendants. As such, it is only the Second Claimant, Alvin Bryan, now prosecuting the Claimants' claim against the Defendants.

The Fixed Date Claim Form
4

I will rehearse the pleadings for context. Generally, strike out” applications do not engage an inordinate amount of the Courts resources, and usually an oral order is enough. The Court in this case has gone to some lengths to set out its reasons because of the highly contentious and public nature of the underlying dispute which has spawned innumerable claims, all still to determined. On 2 February 2021, the Claimants filed this Fixed Date Claim Form,

“The Claimants, ANTHONY ORVILLE PATRICK BRYAN of Number 7 Palm Villas, Astoria in the parish of Saint George, ALVIN DAVID BRYAN of Number 2 Palm Villas, Astoria in the parish of Saint George and ALLAN RICHARD BRYAN of Number 5 Palm Villas, Astoria in the parish of Saint George all in Barbados The Intended Administrators of the Estate of Anthony Theophilus Bryan late of No. 1. Astoria Court, Astoria in the parish of Saint Michael in Barbados (“the Deceased”) claim as the sons and therefore the only persons legally entitled to a share and interest in the estate of the deceased:

  • (a) That the Last Will and Testament of the deceased dated the 25 th day of March 2019 be declared null and void and of no legal effect;

  • (b) That the Claimants be at liberty to apply for a grant of Letters of Administration in respect of the Estate of the deceased;

  • (c) Such further and/or other relief and all necessary and consequential directions as this Honourable Court may deem fit and just; and

  • (d) That costs of this application be borne by the Estate of the deceased.”

5

Relevant excerpts from the Statement of Claim accompanying this Fixed Date Claim Form are set out below,

  • 3. The deceased died in Barbados on the 5 th day of June 2020. At the date of his death we were the only individuals entitled to a share and interest in the Estate of the Deceased pursuant to the Succession Act, Chapter 249 of the Laws of Barbados…

  • 4. Subsequent to the death of the Deceased, we became aware of the alleged Last Will and Testament of the deceased dated the 25 th day of March 2019 (“the disputed Will”) wherein GAIL SHERRY-ANNE PADMORE, SEAN FREDERICK ETEEN and NATALIE RENEE BROWN the Defendants in this action are named along with JEFFERSON CUMBERBATCH as the Executors thereof…

  • 5. We verily believe that the disputed Will is not a valid Will due to the fact that at the time of the alleged execution of the disputed Will the deceased was not of sound mind, memory and understanding nor did he know and approve of the contents thereof. Resultantly, the disputed Will is null and void and without any legal effect.

  • 6. At the time of the execution of the alleged Will the deceased was 74 years old and suffering from illnesses which included diabetes as well as a heart condition which as a result the deceased would experience bouts of deliriousness and overall unawareness with intermittent periods oflucidness…

  • 7. The deceased would suffer from bouts of memory loss of both past and present events. Around the weeks and months preceding the signing of the disputed Will the deceased was on numerous occasions disoriented and not aware of his surroundings and what he was doing. On one such occasion the deceased went to Bridgetown Port Inc. a night time believing he was at the Advocate Newspaper Building in Fontabelle, St. Michael. His behaviour was so erratic that one of the security guards had to call the 3rd Claimant to come and collect the deceased from the Barbados Port Inc. and take him home.

  • 8. The deceased was also unable to operate a motor vehicle as many times he fell asleep at the wheel and on some occasions even ran off the road.

  • 9. The deceased at the time of the execution of the disputed Will was in such a condition of mind and memory as to be unable to understand the nature of the act and its effects, or the extent of the property of which the deceased was disposing, or to comprehend and appreciate the claims to which the deceased ought to have given effect.

  • 10. Due to the deceased's lack of testamentary capacity, at all material times the instructions for the preparation of the disputed Will were provided by the 1 st Defendant to Ashley Waithe, attorney-at-law, who prepared the disputed Will. The said Ashley Waithe subsequently advised the 1 st Defendant on how the disputed Will should be executed. There is no indication that the deceased gave formal instructions or was aware of the contents and/or approved the same…

  • 11. In the disputed Will there were testamentary dispositions of the properties situate at Number 5 “Palm Villas” Astoria in the parish of Saint George and Number 8 “Palm Villas” in the parish of Saint George to Alexander Richard Benjimen Bryan and Chanel Dominique Bryan respectively At the date of his death these said properties were and are still owned by Barbados Broadcasting Service Limited and not the deceased in his own right and hence was not his to give…

  • 12. The said Chanel Dominique Bryan is referred to as the daughter of the deceased in the disputed Will even though the only children and/or issue of the deceased during his lifetime are the Claimants herein.

  • 13. In the disputed Will the deceased disposed of his interest in the said property situate at 45 Ridge View Estate in the parish of Christ Church to the said Gail Sherry-Anne Padmore even though they held the said property as joint tenants and therefore the deceased had no interest to give pursuant to the doctrine of ius accrescendi…

  • 14. In the disputed Will it was stated that the proceeds of Debenture Number 24 valued at BDS$2,000,000.00 and held at the Central Bank of Barbados to Alexander Richard Benjimen Bryan even though in fact the Debenture was already in the names of the deceased and the said Alexander Richard Benjimen Bryan and would therefore not form part of his estate…

  • 15. In the disputed Will there is no mention of his interest in the companies the deceased had and therefore his shares would form part of the deceased's residuary estate which was all left to the Advocate Publishers (2000) Inc. At the date of his death the deceased was the majority shareholder in the following companies Advocate Publishers (2000) Inc., Action Publishing Limited, Barbados Broadcasting Service Limited and Crown Caribbean Publications Limited…

  • 16. Further and/or in the alternative, the execution of the disputed Will was obtained by coercion and undue influence by the 1 st Defendant. In particular:

    • i) At all material times the 1st Defendant was the person giving instructions as it relates to the preparation of the said Will and not the deceased. Furthermore, the 1st Defendant was advised on the due execution of the disputed Will and not the deceased himself

    • ii) The disputed Will was executed at a restaurant over drinks where alcoholic beverages were consumed. The persons present along with the deceased were the 1 st Defendant in addition to the two witnesses to the disputed Will, Sandra Payne and Ian Lewis.

    • iii) One of the witnesses Ian Lewis, was at that time only known by the deceased for a short period of time. Even though he is a Surgeon, he was not the deceased [sic] regular doctor and was known to the deceased due to the fact he was renting a section of the building owned by Barbados Broadcasting Service Limited.

  • 17. Further and/or in the alternative, we verily believe that the execution of the disputed Will was fraudulent in nature. In particular:

    • i) The signature attached to the disputed Will in the form presented was not that of the deceased. The signature of the deceased was a lot stronger than how he was signing documents around the material time.

    • ii) The attorney-at-law who drafted the disputed will, Mrs. Ashley H. Waithe was not a witness to the said disputed Will. The said Ashley H. Waithe subsequently made an enquiry of the deceased's regular physician as it relates to his mental capacity after the alleged execution of the disputed Will and not before the execution of the same.

    • iii) The said Ashley Waithe asked the 1st Defendant to date the Wills in her possession and then to subsequently provide her with the said date so that she could date...

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