Jerry Edwin v Denise Boatswain et Al

• Jurisdiction: Grenada
• Court: High Court (Grenada)
• Judge: Actie, J.
• Judgment Date: 25 February 2025
• Judgment citation (vLex): [2025] ECSC J0225-1
• Year: 2025
• Docket Number: CLAIM NO. GDAHCV2023/0588

In the Matter of the Supreme Court (Non-Contentious Probate and Administration of Estates) Rules

and

In the Matter of the Eastern Caribbean Supreme Court Civil Procedure Rules (Revised Edition) 2023, Part 68 Thereof

and

In the Matter of An Application by the Claimant Herein as the Sole Executor Under the Last Will and Testament of Fitzroy Boatswain, Deceased, Dated the 12th Day of September 2022, For the Grant of Probate

Between:

Jerry Edwin

Claimant

and

[1] Denise Boatswain

[2] Joseph Boatswain

Defendants

Before:

The Hon. Mde. Justice Agnes Actie High Court Judge

CLAIM NO. GDAHCV2023/0588

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Ms. Denneil Larmond for the Claimant

Mr. Ian Sandy for the Defendants

Actie, J.

1 This case concerns the validity of a will dated 12 ^th September 2022 and the caveats entered by the defendants who are siblings and beneficiaries under the said will.

Background

2 Fitzroy Boatswain of Beausejour, St George (hereinafter interchangeably referred to as “the testator” or “the deceased”), executed two Wills dated 17 ^th June 2022 (hereafter referred to as “the June Will”) and 12 ^th September 2022 (hereafter referred to as “the September Will”) respectively. The testator died on 29 ^th September 2022.

3 The claimant, Jerry Edwin, an Attorney-at-Law, was appointed the sole executor to both Wills. The two witnesses of both wills were employees of the claimant. The defendants are the deceased's siblings and beneficiaries under both Wills.

4 In the June Will, the deceased bequeathed the sum of $175,000.00 to each of the defendants which sum was reduced to $10,000.00 each in the September Will. Of further note is a significant increase in a devise in the sum of $30,000.00 in the June Will to the sum of $300,000.00 in the September Will to Joycelyn Thomas.

5 The claimant made an application for a grant of probate on or about 21 ^st November 2022. The defendants on 28 ^th November 2022 and 26 ^th May 2023 filed caveats against the estate of the deceased.

6 On 20 ^th July 2023, the claimant filed a warning to the defendants who in turn filed an acknowledgement of service of the said warning on 27 ^th July 2023.

7 The claimant filed a fixed date claim on 15 ^th November 2023 seeking an order that the September Will be pronounced in solemn form and for a Grant of Probate. The claimant asserts that the September Will satisfies all the legal requirements, and that the testator was of sound mind, memory and understanding when he executed the September Will.

Defendants' case

8 The defendants dispute the September Will and state that the June Will is the true Last Will and Testament of the deceased. The defendants state the deceased was not of sound mind, memory and understanding at the date of the September Will and contend as follows:

• (1) The testator at the age of 67 years was suffering from advanced metastatic prostate cancer and painful severe open bed ulcers which affected his cognitive functions.

• (2) The deceased was bedridden and his memory was bad. He was confused and not oriented as to person, place and time and was not able to converse properly.

• (3) The deceased's poor mental state was exacerbated by the fact that he was malnourished and emaciated.

• (4) The deceased was not, at the time of the execution of the alleged Will, in such a condition to understand the nature of the act and its effect, or the extent of the property of which he was disposing, or to comprehend and appreciate the claims to which he ought to give effect.

• (5) Approximately two weeks prior to the execution of the September Will the deceased seldom spoke and would just watch persons who spoke to him without any reaction.

9 The defendants' counterclaim for an order pronouncing against the validity of the September Will and seek an order pronouncing in favour of the June Will as the true and final Will of the testator.

Legal Analysis

Whether the September Will is valid

10 The September Will contains a revocation clause in accordance with Section 15 of the Wills Act 1. The issue then is whether the September Will is valid and so effectively revokes the June Will.

11 The claimant contends that the deceased at the time of the execution of the Will, was of sound mind, memory and understanding, and that the Will satisfies all the legal requirements and formalities necessary under the Wills Act. The defendants rebut the validity of the September Will and state that testator lacked the requisite mental capacity.

12 In Aubrey Edwards v Rolston Rawlins 2, referred to by counsel for the claimant, Her Ladyship Blenman J as she then was stated as follows:

“In order for a will to be valid, the Court should be satisfied that the testatrix understood three matters: the testatrix must understand the broad effect of her wishes being carried out; the extent of the property she is disposing and the claims to which she ought to give effect. The testatrix must have testamentary capacity at the time when she executes the will. See Banks v Goodfellow. This requires the Court to be satisfied that the testatrix had the following – (a) The nature of the act and its effects; (b) The extent of the property of which he is disposing; (c) The claims to which he ought to give effect.

The legal burden of proof always lies upon the person seeking to propound a will to prove that the testatrix had the testamentary capacity at the time. If that person fails to do so, the will would not be admitted to probate. The testatrix must have known and approved of the contents of the will. The will must be

that of a free and capable testatrix exercising her genuine free choice and not a result of undue influence by another.”

13 Accordingly, the burden of proof of the testator's knowledge and approval lies on the claimant who is the party in this case setting up the Will 3. The burden is discharged prima facie by proof of capacity and due execution 4. The evidential burden then shifts to the objector to raise a real doubt about capacity, and if so raised, the evidential burden shifts back to the party setting up the Will to establish capacity 5.

14 The sole issue to be determined is whether the testator's mind and memory was sufficiently sound to enable him to know and understand the nature and effect of the September Will and that it fully reflects his wish and intentions at the time of the execution of the said will.

15 Counsel for both parties rely on the case of Den v Joseph Vancleve 6 which was cited with approval by our Court of Appeal in Anne-Marie Mac Leish Lynette Rooker v Avison Albert Marryshow 7, in judgment delivered by Pereira JA, as she then was, in the following terms:

“The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have a memory; but his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons or the families of those with whom he has been intimately acquainted… and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all parts of a contract, and yet be competent to direct the distribution of his property

by will…The question is not so much what was the degree of memory possessed by the testator? as this: Had he disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will?”

The Claimant's Evidence

16 Evidence in support of the validity of the September Will and the testamentary capacity of the deceased is given by the claimant, Ms. Aninah Brathwaite and Mr. Atiba John.

Jerry Edwin

17 The claimant, Jerry Edwin, is an Attorney-at-Law. Mr. Edwin both in his witness statement and at trial states that he received a telephone call from the testator sometime in September 2022, indicating his desire to execute a new will. Mr. Edwin in cross examination stated that he spoke with the testator at length, and the testator informed him that he discovered that his siblings had been using funds from his bank account without his consent and wanted to make changes to the June Will. Mr. Edwin states that he called his clerk, Ms. Aninah Brathwaite, in his office and had her edit the June Will by tracked changes according to the testator's instructions.

18 Counsel for defendants, Mr. Ian Sandy, in cross examination asked Mr. Edwin when in September did the testator gave the instructions for the preparation of the September Will. Mr. Edwin in response stated that he was unsure of the exact day but asserts that twenty-four hours had not passed between the instructions and the execution of the Will. Mr. Edwin stated that he took notes, but his notes did not form part of the evidence before the court, and further that no one was present at the testator's home during the telephone conversation he had with the testator for the preparation of the September Will.

19 Mr. Edwin in cross examination stated that he was aware that the testator had a leg injury but was not aware that he had cancer. Mr. Edwin went further to state that the testator did not evince any pain, and he was sure that the testator did not have any diminished mental capacity. However, the court notes that Mr. Edwin in the filed reply to the defendant's defence and counterclaim admits that he was aware that the testator was suffering from advanced metastatic prostate cancer with painful bed ulcers which he averred did not affect his cognitive functions.

Aninah Brathwaite

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