Martin v Hope
| Jurisdiction | Barbados |
| Judge | Belgrave, J. |
| Judgment Date | 03 March 1992 |
| Neutral Citation | BB 1992 HC 13 |
| Docket Number | No. 456 of 1990 |
| Court | High Court (Barbados) |
| Date | 03 March 1992 |
High Court (Civil Jurisdiction)
Belgrave, J.
No. 456 of 1990
Mr. Dennis Chandler and Mr. Dale Marshall for the plaintiff.
Mr. Francis Belle and Mr. Derek Daniel for the defendant.
Will - Testamentary capacity — Execution of two wills — Whether testator was of sound mind when second will made.
On March 26, 1990, the plaintiff filed a Writ of Summons in the High Court in which she pleaded that a will alleged to have been made on March 21, 1988 by the deceased Eustace Winston Brathwaite was made at a time when the said Eustace Winston Brathwaite was not of sound mind, memory or understanding. The particulars are:–
At the time the deceased executed the alleged will he was 82 years of age. At the time of the execution of the alleged will he was in such a condition of mind and memory as to be unable to understand the nature of the act and its effect, the extent of the property of which he was disposing or to comprehend and appreciate the claims to which he ought to give effect.
The plaintiff therefore claims:
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(1) that the court shall pronounce against the force and validity of the said alleged will dated March 21, 1988;
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(2) that the court shall pronounce for the force and validity of the will dated July 30, 1986 in solemn form of law.
In the defence to the above action filed on May 24, 1990 the defendant denies that the deceased was not of sound mind, memory or understanding as alleged by the plaintiff in her statement of claim and the following particulars of the soundness of the deceased's mind are:
At the time the deceased executed the said will dated March 21, 1988, he was of sound mind, memory and understanding. He was at the time of the execution of the said will in such a condition of mind and memory as to be able to understand the nature of the act and its effect, the extent of the property of which he was disposing, and to comprehend and appreciate the claims to which he ought to give effect.
And by way of counterclaim the defendant states:
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(1) that the said will dated July 30, 1986 was revoked by the will dated March, 1988;
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(2) that the deceased made his true will dated March 21, 1988 and thereof appointed the defendant sole executor and sole beneficiary.
And the defendant claims:
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(1) that the court shall pronounce against the will dated July 30, 1986 propounded by the plaintiff;
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(2) that the court shall pronounce for the will dated March 21, 1988 in solemn form of law.
The evidence in support of the plaintiff's case was given on oath by the plaintiff and her two sons, Henry Ricardo Martin and Grafton DeCoursey Hinds.
The plaintiff's evidence is that she is one of the 4 children of the deceased who died on Saturday, May 21, 1988 at the age of 82 years. Her father lived alone at Welchman Hall, Saint Thomas. He owned the land on which his house was situated. It was about 1 3/4 acres of land, part of which was a tenantry with 6 houses on it. Her father cultivated part of the land and sold the produce. He also collected the rents from the tenants. She cooked his meals, did his laundry and carried water for him on a regular basis. Her home was about a half mile from that of her father. She said that she attended a family meeting at her father's home sometime in 1986. Present at that meeting were: the defendant, her brother, Eurine Coward, her sister, Grafton Hinds, her son, and her father, the deceased. At that meeting, the deceased told them that he intended making a will. He intended to give a spot of land to Grafton Hinds, his grandson. The remainder of the land would be bequeathed by him in equal shares to his three children namely, the plaintiff, the defendant and Eurine Coward. The defendant there and then, told his father that he did not agree with the manner in which he had proposed to distribute his estate. The defendant told his father that his four children should benefit under the will. The defendant said that if the four children were not given a share of the land, he, the defendant, did not want any share in the estate. Her father accepted what the defendant had told him and agreed that his daughter Claradine Howard, who resided in Canada, should benefit under his will with the other three children. Consequently, her father consulted an attorney-at-law who made the will in 1986. She and the defendant were appointed executors and trustees of the said will. Her son Grafton Hinds was given a piece of the land by her father in the will. The remainder of her father's estate was to be divided in equal shares among his four children. Her father did not have any title deeds to the land and Grafton Hinds consulted an attorney-at-law for the purpose of titling the land. The land was surveyed and a good title was obtained by her father from the Registrar of the Supreme Court. Her father then conveyed to Grafton Hinds 617.4 square metres of land which amount of land he had devised and bequeathed to him under the will. The defendant was aware that his father had conveyed the said parcel of land to Grafton Hinds. The plaintiff said that her father was in good health when he executed the will in 1986, but that his health began to deteriorate in 1987. He was in the habit of walking away from home. He would visit her home at night. She would allow him to sleep there on those occasions. He complained of hearing scratching noises under his own house.
She slept with him at his house on two occasions at night but she did not hear the noises which he had complained of hearing. Her father took ill at the Post Office and she took him home. When he travelled by bus he would get off at the wrong stop as he was not sure where he was going. The plaintiff said that when she heard of the existence of the second will she became suspicious because she did not believe that their father would have made another will without telling the other members of the family about it. She learnt of the second will about a week after May 21, 1988, the date on which her father died. On Sunday May 22, 1988 the members of the family went to the Saint Thomas Funeral Home of Mr. Vere Skeete for the purpose of selecting a coffin in which to bury the old man. The defendant chose a coffin valued at $6,000.00. She told him that that coffin was too expensive. Whereupon the defendant produced a document from his pocket and gave it to her to read. She gave the document to her son Henry Ricardo Martin who read it aloud. It was then that she discovered that it was the will which her father had made in July 1986. She identified Exhibit P1 as a certified copy of the said will. After the said will was read, the defendant suggested to them that $6,000.00 was not too much to spend on a coffin for the deceased. He suggested that each of the three children of the deceased then present should contribute $2,000.00 towards the cost of the coffin and this was agreed to by them. The plaintiff said that she paid the undertaker $500.00 that morning and agreed to pay him the remaining $1,500.00 in due course. The defendant agreed to pay $2,000.00 to the undertaker and so did Eurie Coward. The defendant did not tell either of them that the deceased had made a second will in 1988; neither did Mr. Vere Skeete inform them of the existence of the 1988 will. The plaintiff said that after she learnt that there was a second will she refused to pay the undertaker Skeete any further sums of money. The plaintiff identified Exhibit D1 as the second will made in 1988. She said that the second will was not consistent with the wishes of her father in that under that will the defendant was stated to be the sole beneficiary of her father's estate and this was contrary to what her father had said in his lifetime that he would do.
The evidence of Henry Martin is that he was present at the funeral home of Mr. Vere Skeete on May 22, 1988 where the members of his family had met to make arrangements for the burial of his grandfather. Whilst there, he was given a will by his mother. He read the will in the presence of his mother, the plaintiff, the defendant, Eurine Howard, his aunt and Mr. Vere Skeete, the undertaker. He said that they were shown a coffin by the defendant the price of which was $6,000.00. The defendant wanted the plaintiff and his aunt Eurine Coward to pay $2,000.00 each towards the cost of the coffin. The defendant had said that he would pay the remaining $2,000.00. Henry Martin said that the plaintiff was not happy with that coffin as it was too expensive. It was then that the defendant had told them that there was no need to worry about the cost of the coffin because the deceased had left the land to them in his will. The defendant produced the will and gave it to the plaintiff to read. The plaintiff handed it to him and he read it. After he read the will the plaintiff, his aunt Eurine Coward and the defendant agreed to pay $2,000.00 each for the said coffin. The witness was shown Exhibit P1 and he identified it as a certified copy of the will which he had read.
The last witness for the plaintiff was her 39 year old son, Grafton DeCoursey Hinds. His evidence is that the deceased was his grandfather. His grandfather was always very fond of him. In 1985, he was living with his wife and two children in rented accommodation at Haynesville, Saint James. He wanted to build a house for his family. He went to his grandfather and asked him to give him a spot of land on which to build his wall house. The grandfather showed him two spots. He selected one of them and the grandfather told him that he could build his house on that spot. He asked his grandfather if he had title deeds to the land and was told no. Grafton Hinds said that he was worried about building his house on the piece of land without being the owner of it. He feared that he would have trouble after his grandfather had died. The grandfather then gave...
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