Tull v Phillips

• Jurisdiction: Barbados
• Judge: Waterman, J
• Judgment Date: 30 June 1998
• Neutral Citation: BB 1998 HC 12
• Docket Number: No. 1847 of 1995
• Court: High Court (Barbados)
• Date: 30 June 1998

High Court

Waterman, J.

No. 1847 of 1995

Tull

and

Phillips

Appearances:

Mr. A. P. Shepherd, Q.C. in association with Mr. R. D. Belgrave for the plaintiff.

Mr. W. L. Inniss, Q.C. in association with Mr. M. Yearwood for the defendant

Mr. L. D. Greenidge of the Beneficiary, Gordon Alleyne

Mr. O. Durant received the judgment for Counsel Greenidge.

Will - Validity — Plaintiff sought a declaration that the will of the deceased dated February 22, 1991 is invalid on the ground of want of testamentary capacity on the part of the deceased testator — Whether deceased was of sound mind when the disposition was made — Court stated that it was satisfied that the deceased was not of sound mind when the will was made — Declarations granted.

Waterman, J

1 In this application, the plaintiff Louis Randall Tull sues as the executor of the will of Sir Mencea Ethereal Cox deceased, dated July 21, 1989 for the following:

1

) a declaration that the will of the deceased dated February 22, 1991 wherein the defendant herein is named the executrix is invalid on the grounds of want of testamentary capacity on the part of the deceased testator during the period shortly before and at the time of the execution of the will and also before such period due to senility and/or dementia of which the symptoms first manifested themselves approximately in or about January 1990; 2) further or in the alternative, a declaration that the said will is invalid on the grounds of undue influence having been exercised upon the testator by the defendant herein, the executrix of the said will and/or the witnesses thereto; 3) further or in the alternative a declaration that the said will is invalid on the grounds that the same is improperly executed or attested; 4) a declaration that a will dated July 21, 1989 by the deceased/testator wherein the plaintiff herein is named as executor therein is valid and further that the plaintiff be directed to propound the said will in solemn form qua executor as the Last Will and Testament of the said deceased; 5) that the court pronounce for the force and validity of the Last Will and Testament dated July 21, 1989 of the said Sir Mencea Ethereal Cox, the deceased in this action, a copy of which is referred to in the affidavits of script of the plaintiff Louis Randall Tull and pronounce against the force and validity of the alleged last will dated February 22, 1991, and that the court order that probate of the said will dated July 21, 1989 of Sir Mencea Cox deceased be granted to the plaintiff Louis Randall Tull the executor named therein. 6) further any other orders and directions as may be necessary.

2 The defendant Cynthia Isabel Phillips is sued as he executrix of the will of Sir Mencea Ethereal Cox deceased, dated February 22, 1991.

3 In his affidavit evidence of November 9, 1995 the plaintiff, inter alia, deposes as follows:

1

I am the plaintiff herein, and the executor named in the will of Sir Mencea Cox deceased, dated July 21, 1989. 2. That the deceased died on March 2, 1994 leaving also a will dated February 22, 1991 wherein the defendant was named as the executrix therein. 3. That the deceased was well known to me during his lifetime. I first met him during my youth when he, then a Barbados Labour Party representative for the constituency of St. Michael, often visited my father's house. 4. That later during my adult life, I got to know the deceased when I became involved in elective politics. In the 1971 General Elections the deceased and I were candidates for the Barbados Labour Party. We both served in the same Cabinet after the 1976 elections. 5. That from time to time the deceased sought my advice on personal matters and I freely gave same whenever he requested. 6. That in or about the late 1980's the deceased asked me to look after the collection of his rents from several of his tenants as his eyesight had begun to fail him. I acceded to his request. I also worked professionally for the deceased in or about that time. 7. That during that period I visited him regularly as his eye-sight deteriorated. The deceased would discuss his personal affairs with me, particularly matters relating to his death, burial and the administration of his estate because, as he often put it “I don't have any family. 8. I would pay all outgoings of the deceased's home at Collymore Road, St. Michael, including electricity, water, land taxes and insurance. 9. That I arranged for and paid for the daily care of the deceased. I would also arrange for regular visits to his doctor and pay all bills in connexion therewith. 10. That in or about the year 1989 when the deceased's health deteriorated to the extent that he required full-time care I arranged for him to be admitted to a Nursing Home and subsequently paid all his nursing bills. 11. That I am aware that the deceased before his admission to the Nursing Home caused a will to be prepared and executed the same. That will is dated July 21, 1989. 12. That to the best of my knowledge and belief the deceased was incapable of understanding the nature and extent of the will mentioned in paragraph 2 hereof at the time of and during the period shortly before its execution due to unsoundness of mind due to senility and/or dementia. 13. That my belief as mentioned in paragraph 12 hereof is based on my intimate knowledge of the deceased's mental and other health due to my close contact and association with the deceased throughout the last 24 years of his life. 14. 15. That the defendant Cynthia Isabel Phillips is known to me. I first met her in or about January 1989 when she contacted me and offered to assist with the general care of the deceased. 16. That thereafter the defendant assisted the deceased in taking him to the doctor, buying his medication and toiletries. All the bills with no exception, in connection therewith were submitted to me by the said Cynthia Isabel Phillips and paid for by me.

17

That I was consulted by the said Cynthia Isabel Phillips on every matter pertaining to the deceased's care and/or personal affairs and needs in order to make a decision thereof except the preparation of the will dated July 21, 1991 and a visit made to Dr. Ronald Wilson, Medical Practitioner, in or about the time the said will was executed. The bills in connexion therewith were never submitted to me for payment. 18. That I first became aware of the existence of the will dated July 21, 1991 only when the defendant herein sought to probate same.

4 The plaintiff also gave oral testimony before the court during the proceedings and made supplementary affidavits.

5 In his affidavit evidence of July 18, 1996 George Maynard deposed as follows:

• “2. That the above-named Sir Mencea Cox deceased was well-known to me, having visited my office on numerous...