Desiree Margarita Diaz v Suzanne Deborah Johnson

• Jurisdiction: Barbados
• Judge: Madam Justice Shona O. Griffith
• Judgment Date: 11 November 2020
• Neutral Citation: BB 2020 HC 61
• Court: High Court (Barbados)
• Docket Number: Claim Suit No: 641 of 2019
• Date: 11 November 2020

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Before:

The Hon. Madam Justice Shona O. Griffith, Judge of the High Court

Claim Suit No: 641 of 2019

Between:

Desiree Margarita Diaz

Claimant

and

Suzanne Deborah Johnson

(As Executrix for the Estate of Patrick Anthony Diaz)

1 ^st Defendant

Felipe Johathan Diaz

2 ^nd Defendant

Appearances:

Mr. Bryan L. Weekes for the Claimant

Mr. Barry Gale QC in association with Mrs. Laura Harvey-Read for the 1 ^st Defendant

Mrs. Marguerite Woodstock-Riley in association with Ms. Amanda Riley-Jordan for the 2 ^nd Defendant

Contentious probate claim — Application to dismiss — CPR Rule 68.9 — Basis for dismissal — Striking Out and Contentious Probate Claim — CPR Rules 26.3(3)(a)&(b)

RULING

Introduction

1 This is an Application filed by the 2 ^nd Defendant herein, for the dismissal of the Claimant's contentious probate claim which was filed in March, 2019 under CPR Part 68. The Claim is for revocation of the grant of probate issued in March, 2017, to the 1 ^st Defendant, the Executrix of the Estate of Patrick Diaz, deceased. Patrick Diaz was the father of the Claimant and both Defendants. The Claimant alleges that her deceased father not only lacked testamentary capacity to make the will which he executed in December, 2015 but also that he neither knew nor approved of its contents. In the alternative, the Application seeks the striking out of the Claim pursuant to Rules 26.3(3)(a)&(b), or pursuant to the inherent jurisdiction of the Court. The 1 ^st Defendant joins with the Application to dismiss, whilst the Claimant resists same on the basis that the matter is one properly determined by a trial on its merits.

Issues

2 The issues which arise for determination are as follows:-

• (i) What is the scope of the Court's power of dismissal under Rule 68.9(2)?

• (ii) Should the Court exercise its discretion to dismiss or strike out the Claim as prayed?

Factual and Procedural Background

3 The Claimant Desiree Diaz is the daughter of the deceased Patrick Diaz, who died in March, 2016. The deceased left a will executed on the 10 ^th December, 2015 by which he left his Estate to his youngest child Felipe Diaz, the 2 ^nd Defendant. The 1 ^st Defendant Suzanne Johnson is also a child of the deceased and is the Executrix of the will, which was probated in common form in March, 2017. Desiree Diaz alleges that the deceased lacked testamentary capacity when he executed his will in December, 2015 as he was suffering from severe dementia, as well as had a tumor in his brain. By affidavit evidence, she also alleges that the deceased was unable to speak at the time of execution of his will, due to his medical condition. The Claim alleges that the deceased neither had testamentary capacity nor did he know and approve of the contents of his will. In particular, the Claim prays the following relief:-

• “1. A Declaration that the will of Patrick Anthony Diaz dated the 10 ^th Day of December, 2015, is invalid;

• 2. An Order revoking the High Court's Grant of Probate in No. 23 of 2017 to the Estate of Patrick Anthony Diaz issued on the 3 ^rd day of March, 2017 to Suzanne Deborah Johnson in relation to his purported will of the 10 ^th day of December, 2015 pursuant to s.18(2) of the Succession Act Cap. 249 of the laws of Barbados.”

4 The Claimant alleges that the last will and testament of the deceased is a will executed in October, 2009, of which she is the sole executor and one of the named beneficiaries. (There is no claim for that will to be admitted to proof by the Court). In addition to the statement of claim, the Claimant filed affidavits on the 13 ^th May, 2019, 20 ^th February, 2020 and a witness statement sworn by a brother (Antonio Diaz, not a party), on 8 ^th May, 2020. Affidavits in response to the Claim were filed on the 1 ^st November, 2019 by the 1 ^st Defendant herself and on her behalf, by the attorney-at-law who prepared the will and who was present at its time of execution. The 2 ^nd Defendant filed an affidavit in response to the Claim on the 11 ^th July, 2019 and on his behalf, two other affidavits were filed by (i) a sister of the deceased (Patricia Wentworth); and (ii) a physical therapist who worked with the deceased whilst he was a patient at the nursing home, before he died. There is therefore a significant body of evidence before the Court, however there was no first hearing (case management) of the matter in accordance with Part 27.2(2) of the Rules.

The Application and Submissions of Counsel

Submissions on behalf of 2 ^nd Defendant

5 In March, 2020 the 2 ^nd Defendant filed an application to dismiss the Claim, pursuant to Rule 68.9 of the CPR 2008. This Rule provides as follows:-

• “68.9 (1) Part 37 does not apply in relation to probate proceedings.

• (2) At any stage of proceedings the court may, on the application of the claimant or of any party to the proceedings who has entered an acknowledgment of service, order that the proceedings

  • (a) may be discontinued; or

  • (b) dismissed

  on such terms as to costs or otherwise as it thinks just, and may further order that a grant of probate of the will, or letters of administration of the estate of the deceased person, as the case may be, be made to the person entitled.”

6 To the extent that the Rule does not prescribe any grounds for dismissal, Queen's Counsel on behalf of the 2 ^nd Defendant categorises the Court's discretion under the Rule as wide, to be exercised in keeping with the overriding objectives of the CPR 1. The Application is also advanced on the alternative bases of dismissal pursuant to the Court's inherent jurisdiction, or for the striking out of the claim, pursuant to Rule 26.3(3) on the grounds that:-

Notwithstanding the multiple grounds for striking out or dismissal advanced by the 2 ^nd Defendant, the Court considers the Application to rest on two main contentions. Firstly, that the Claimant's case, standing on its own, even when taken at its highest, is bound to fail. Secondly, when assessed with reference to the relative strength of the respective cases, the Claimant's case is likewise bound to fail.

• a. The statement of claim is an abuse of the Court's process;

• b. The statement of claim discloses no reasonable ground for bringing a claim; or

Factual bases of Application

7 The attack on the Claimant's case, when considered on its own, takes into account the following:-

• (i) The Claimant's grounds for revocation of the grant of probate, namely — lack of testamentary capacity, and lack of knowledge and approval of the contents of the will — are unsupported by the totality of the medical evidence produced by the Claimant;

  • — In this regard, the Claimant's medical evidence consists of two letters and a medical report (made for the purposes of the claim), from Dr. Steven Moe, who was not the deceased's regular doctor, and who saw the deceased on only one occasion in November, 2015. Most importantly however, Dr. Moe's statements do not state and are not able to rise to the conclusion that the deceased lacked testamentary capacity at the date of making the will.

  • — Specifically, Dr. Moe's first letter (dated 6 ^th November, 2015) spoke of the deceased exhibiting ‘signs of dementia’ and that the deceased was ‘unable to look after his own affairs’. In his further letter dated 1 ^st April, 2019 which was written to the Claimant's then attorney, Dr. Moe stated that the deceased ‘had dementia’ and according to the Defendants, Dr. Moe also speculated that a lesion on the deceased's brain was the likely cause for his dementia and for the deceased being non compos mentis.

• (ii) It is submitted that none of Dr. Moe's statements in either of the two letters, are capable of establishing that the deceased lacked testamentary capacity, or lacked knowledge and approval of the contents of his will;

• (iii) It is also pointed out that the medical evidence does not support the Claimant's pleading that the deceased was suffering from ‘severe dementia.’

• (iv) Upon the request of the Claimant's attorneys made in December 2019, (which was after commencement of the Claim), Dr. Moe provided a report based a specific question put by the Claimant's attorneys as to the deceased's mental state and his capacity to make his will. The 2 ^nd Defendant contends as follows arising from the Doctor's report which was issued in February 2020:-

  • — The doctor did not answer the specific question posed by the Claimant's attorney and it is submitted that he is unable to do so. As a result, Dr. Moe's evidence cannot be said to support the claim;

  • — Dr. Moe's medical experience and background is that of cardiology; his examination of the deceased arose out of a referral for a second opinion on the deceased's cardiac issues at the time.

  • — Dr. Moe's report acknowledges and accepts that his area of specialty was not that which would enable him to make a proper assessment of the deceased's neurological condition.

  • — Dr. Moe's assessment of the deceased was incomplete as he was not in possession of sufficient medical information to even make a referral for a full dementia assessment;

  • — Dr. Moe distances himself from any attempt to make any pronouncement on terms of ‘sound mind’ and ‘compos mentis’.

  • — Dr. Moe had recommended that the deceased execute a power of attorney, in case his memory loss progressed.

    It is submitted that if Dr. Moe was able to recommend that the deceased execute a power of attorney, it was not open to him to opine that the deceased lacked testamentary capacity;

  • — Finally, Dr. Moe's report reveals that due to a lack of testing, he was not able to ascertain the extent of the deceased's dementia.

• (v) In addition to the weak medical evidence, it is pointed out that the Claimant herself gave no particulars as to why she claims that the deceased lacked testamentary capacity or did not know or approve of the contents of his will.

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