King v Massiah
| Jurisdiction | Barbados |
| Judge | Moore, J.A.,Re |
| Judgment Date | 09 May 2014 |
| Neutral Citation | BB 2014 CA 7 |
| Docket Number | Civil Appeal 4 of 2010 |
| Court | Court of Appeal (Barbados) |
| Date | 09 May 2014 |
Court of Appeal
Gibson C.J., Moore, J.A.; Mason, J.A.
Civil Appeal 4 of 2010
Mr. Clement Lashley, Q.C., Miss Jennifer King and Miss Honor Chase for the appellant
The respondent not appearing in person or by counsel
Will - Validity — Whether testatrix knew and approves contents of will — Suspicious circumstances — Appeal allowed.
The facts and evidence are set out comprehensively in the decision of the trial judge. What we outline below is a brief summary thereof.
Carmen Norrine Phillips (testatrix) died in Barbados on 25 August 2001 at the age of 80 years. She was a retired elementary school teacher and at the time of her death she resided in a nursing home. Until she was removed to the nursing home she lived largely alone at Howell's Cross Road in the parish of Saint Michael.
The testatrix made her will on 28 February 2000 by which time she was aged, infirm and blind and assisted by household staff comprising a maid and a night nurse.
The testatrix appointed Lester Massiah (“Lester”) of Ivy Main Road, Saint Michael and Gloria Best of Brooklyn, New York, USA as executors of her will. Except for her Hyundai Excel motor car which she bequeathed to Lester, she gave, devised and bequeathed her real and personal property, including her bank accounts to O'Donovan Yarde (O'Donovan) and Tamara Yarde (Tamara) whom she described as “my nephew” and “my niece”, respectively. In fact, they were not related to her. They were born in St. Lucia and came to Barbados with their parents. The testatrix worshipped at the Seventh Day Adventist Church at Brittons Hill, St. Michael. O'Donovan and Tamara were pupils of the Seventh Day Adventist School and they also worshipped at the Church. The testatrix befriended them and eventually they lodged at her house and the friendship grew. At the time of the making of the will O'Donovan lived at the Ivy Main Road and Tamara lived in Brooklyn, New York.
The respondent applied to have the will propounded and the appellant issued a caveat, the respondent issued a warning to the executor who then entered an appearance.
The testatrix was the appellant's sister and he used to visit her regularly and take her to the doctor in his motor car. He was not a beneficiary under her will. Although the appellant visited his sister regularly the first time he met O'Donovan was at the testatrix's funeral.
On 10 May 2005 the appellant as plaintiff, issued a writ. By an amended statement of claim filed on 02 July, 2008, the plaintiff claimed (a) that the will had not been duly executed in accordance with statute law and the general law; or alternatively, (b) that the execution of the will had been obtained by the undue influence of a beneficiary; and (c) that the will was not the will of the Deceased.
By amended defence and counterclaim dated 23 October 2008, the respondent denied the appellant's claim and prayed for the court to pronounce for the validity of the will in solemn form.
On 3 March 2010, Richards. J dismissed the appellant's claim. It is from that order that the appellant has appealed to this Court for an order that the decision of the trial judge be set aside and judgment entered in favour of the appellant with costs.
In her reasons for decision the trial judge said at paragraph 92 to 94:
“[92] The Court prefers the evidence of Mr. Yarde and Ms. Best, and finds as a fact that the Deceased executed the will after it was read to her by the lawyer, and after he had asked her a number of questions. The provisions of the will are not complex, and a blind testator, with full mental capacity, would have had no difficulty in understanding this will when it was read.
[93] It must be noted that this will was not executed in secret. Ms. Eversley was in the house at work and near to the activity at the dining table. There is no evidence of any attempt made to hide the proceedings from Ms. Eversley. Had there been any clandestine purpose on the part of Mr. Yarde or any other person, the will could have been executed at a time when Ms. Eversley was not at work. She usually left around midday on her work days, and there was a gap of approximately eight hours before the night nurse came in to work.
[94] Whatever suspicions were raised either by the inadequate attestation clause in the will, or by Mr. Yarde's involvement in the execution of the will, have been adequately explained and addressed to the satisfaction of the Court. The defendant has discharged the burden of proof, and he has established on a balance of probabilities that the deceased knew and approved the contents of the will. The statutory and other legal requirements for execution of the will were
When this appeal first came on for hearing Mr. Patrick Phillips, attorney-at-law, attended Court and said that he had appeared on behalf of the respondent in the Court below but had no instructions to defend the appeal because he had not heard from O'Donovan since June 2011. Mr. Philips had already written the Registrar the following two letters:
“January 23, 2012
Registrar of the Supreme Court
Supreme Court Complex
Whitepark Road
St. Michael
BY FAX & MAIL
Dear Madam
ReCivil Appeal No. 4 of 2010 — Levere King v. Lester Massiah
I refer to the Notice of Hearing dated the 26 th October, 2011 which was mailed to this law chambers on the captioned matter.
I write to advise that I have been trying to contact Mr. O'Donovan Yarde, my client herein since October, 2011 without any success. Mr. Yarde resides in the Island of St. Lucia and all my correspondence and telephone calls to him have gone unanswered. Mr. Yarde who carries on an international consultancy business, has not been in contact with this law chambers since June, 2011.
In the circumstances, I have received no instructions from him on the conduct of this matter neither can I say that he has any further interest in the outcome of the same.
In light of the foregoing, I will however crave leave that the matter be granted a short adjournment to a date in the month of May, 2012, to facilitate further efforts to contact my client.”
Yours faithfully
Patrick McI. Phillips
January 31, 2012
Registrar of the Supreme Court
Supreme Court Complex
Whitepark Road
St. Michael
BY FAX & MAIL
Dear Madam
ReCivil Appeal No. 4 of 2010 — Levere King v. Lester Massiah
I refer to my letter to you dated January 23, 2012 on the captioned matter wherein I advised that I have not been instructed on the conduct of the same.
In addition to the above, I am appearing for the Applicant in the High Court trial entitled CV 1774 of 2005 — Lorna Vanella Moore v. Von Wilfred Callender on the 6 th, 7 th and 9 th of February, 2012.
In view of the foregoing, I would not be in a position to attend the adjourned hearing date of the 8 th February, 2012 on such short notice.
Yours faithfully
Patrick McI. Phillips
cc: Mr. Clement Lashley
This matter was adjourned on two further occasions and even though he had been notified of the adjourned dates Mr. Phillips never appeared. In the end, in order to further accommodate Mr. Phillips as requested in his letter dated January 23, 2012 above, the appeal was adjourned to 9 May 2012. On that day it was heard in his absence with the respondent unrepresented. That fact, however, having regard to the entirety of the case, in no way affected its outcome.
The grounds of appeal are as follows:
“a. The decision of the Court is against the weight of the evidence.
b. The learned trial judge having made a finding that the attestation clause to the will does not state that the deceased was blind and that the will was read to her prior to its execution and that a well grounded suspicion had been raised the said Court relied on conflicting evidence by O'Donovan Yarde, the bearer of the will and the main beneficiary — and Stella Best and found as a fact that the deceased executed the will after it was read to her by the Lawyer and after he had asked her a number of questions.
c. There is no clear evidence that the will was read back to the Testatrix and that she had the degree of appreciation of its contents and effect necessary to establish knowledge and approval of its contents.
d. That the learned trial judge failed to pronounce against the validity of the will notwithstanding that the “golden rule” was not followed in this case in that there is absolutely no clear evidence that the will was read back to the Testatrix and she appeared thoroughly to understand the same and that she approved the contents. There is absolutely no evidence that any questions such as “why, what, who or when” so as to establish that the Testatrix could hear and understand the provisions of the will which was allegedly read back.
e. That the learned trial judge erred in law in holding that the party propounding the will and taking a benefit under it who also was instrumental in its procuration, preparation and execution had discharged the burden of proving affirmatively that the Testatrix knew and approved its contents.
f. The judgment is unsatisfactory be (sic) means of material inconsistencies or inaccuracies.”
Taken together, the grounds raise the sole issue of whether the testatrix knew and approved the contents of the will. It is that issue that we discuss below.
In light of the importance which the attestation clause assumes in this appeal, we consider it useful to set it out:
“Signed by the testatrix the said CARMEN NORRINE PHILLIPS in the presence of us both present who in the presence of the Testatrix have hereunto subscribed our names as witnesses.”
In the case of E. Jack, N. Jack and Dora Supersad v. Irving Supersad, 1954 LRBG 38 (Supersad) the West Indies Court of Appeal citing Lindley LJ in Tyrell v. Painton (1894) P 151 at 157 stated:
“It is well settled law...
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