Mac Leish and Rooker v Marryshow

• Jurisdiction: Grenada
• Judge: Pereira, J.A.,Baptiste, J.A.,Edwards, J.A.
• Judgment Date: 14 May 2012
• Neutral Citation: GD 2012 CA 3
• Docket Number: Civil Appeal No. 12 of 2010
• Court: Court of Appeal (Grenada)
• Date: 14 May 2012

Court of Appeal

Edwards, J.A.; Pereira, J.A.; Baptiste, J.A.

Civil Appeal No. 12 of 2010

Mac Leish and Rooker

and

Marryshow

Appearances:

Mr. Leslie Haynes, QC, instructed by Henry, Henry & Bristol with Ms. Denise Haynes for the appellants.

Dr. Francis Alexis, QC, with Mr. Ian Sandy for the respondent.

Will - Validity — Testamentary capacity — Suspicious circumstances — Sound and disposing mind and memory.

On the death of the testatrix, Ena Albertine Olive Payne, it was discovered that she had made two Wills; the first Will having been executed on 14th December 1982. The second Will was prepared by an attorney at law, Mr. Ashley Bernardine, and was executed on 6th September 1995 before both Mr. Bernardine and his secretary Ms. Jean Frederick. Both Mr. Bernardine and his secretary were present when the deceased gave instructions for the second Will. The notes containing these instructions which Mr. Bernardine took were not retained by him. At the time of the taking of the instructions the deceased testatrix did not make mention of her 1982 Will or the way in which she distributed her assets in that Will.

The 1982 Will bequeathed all her assets absolutely in equal shares to her nieces, the appellants, and appointed them to be the Executrices of that Will. However the 1995 Will, in which the testatrix revoked all former wills, codicils and or testamentary dispositions, bequeathed all her assets to the her first cousin and god-son, the respondent. The respondent, along with Mr. Bernardine, were appointed the Executors of this 1995 Will. This second Will was probated and the Supreme Court granted probate to the respondent with power reserved to make a like grant to Mr. Bernardine.

The appellants filed a claim for revocation of the said probate and for the Court to pronounce against the validity of the 1995 Will. The appellants contended, amongst other things, that the deceased who was 80 years old at the time she executed the 1995 Will, was exhibiting signs of senility and was suffering from Alzheimer's disease and that she was at the material time in such a condition of mind and memory as to be unable to understand the nature of the act and its effects, or the extent of the property of which she was disposing, or to comprehend and appreciate the claims to which she ought to give effect. The appellants further claimed that the deceased did not execute the Will as the signature on the Will, purporting to be that of the deceased, is not hers as the signature differs significantly and radically from other signatures previously made by the deceased and appearing on official documents signed prior to 1994. The appellants alleged that there were suspicious circumstances surrounding the execution of the1995 Will and requested inter alia that the Court pronounce in solemn form for the true last Will of the deceased dated 14th December 1982.

The respondent denied the entirety of the appellants' case. He put the appellants to strict proof of their pleaded suspicious circumstances. Both the appellants and the respondent had expert witnesses who testified on their behalf. The trial judge preferred the evidence of the respondent and his witnesses and found that the 1995 Will was the last true Will and Testament of the deceased testatrix. The appellant appealed on various grounds which included that the learned trial judge erred in finding that the 1995 Will was not a forgery; that the learned trial judge erred in holding that the testatrix, at the time of her alleged execution of the 1995 Will, had the necessary testamentary capacity; that the trial judge erred in finding that the respondent had discharged his burden of proving that the testatrix had the necessary mental capacity at the making of the 1995 Will; and moreover, the trial judge erred in holding that there were no suspicious circumstances surrounding the 1995 Will.

Held: dismissing the appeal (Edwards, J.A. dissenting) and ordering that the appellants pay the agreed prescribed costs of the respondent in accordance with CPR 65.5(2)(b)(iii) which puts the costs of the claim below at $14,000.00 and the costs in the appeal being two thirds of that sum pursuant to CPR 65.13, that:

• 1. The testatrix, at the time of making her 1995 Will, must in the language of the law, be possessed of sound and disposing mind and memory. Her memory may be very imperfect, greatly impaired by age or disease, yet her understanding may be sufficiently sound for many of the ordinary transactions of life. Once the court is able to answer whether the testatrix's mind was sufficiently sound to enable her to know and understand the business in which she was engaged at the time she executed her will, the testatrix is deemed possessed of adequate testamentary capacity. In the present case, there was sufficient evidence which showed that the deceased was aware of the extent of her property over which she had a power of disposition. There was also evidence as to why she would wish to bestow her bounty on her god-son as opposed to her nieces. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries and this can lead to disputes almost always arising. However, if judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs. In light of this, the Court is bound to agree with the finding by the learned trial judge on this issue. (per Pereira, J.A. and Baptiste, J.A.; Edwards, J.A. dissenting).

  Gill v. Woodall and others [2010] E.W.C.A. Civ 1430 applied; Den v. Joseph Vancleve (1819) 2 Southard 589 applied; Zorbas v. Sidiropoulous (No 2) [2009] N.S.W.C.A. 197 cited; Marsh v. Tyrell and Harding (1828) 2 Hagg. Ecc. 84 applied distinguished.

  A court ought not to pronounce in favour of a will that is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testatrix. A court should be satisfied that at the material time of making a will the testatrix had a sound and disposing mind, memory and understanding. A disposing mind and memory is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions and the like. The testatrix, at the time of making her 1995 Will, must be possessed of this sound and disposing mind and memory and understood the nature of her act and its effects, the extent of the property of which she was disposing, and understood and appreciated the claims to which she ought to give effect. The testatrix must also comprehend the nature of the claims of others whom by her will she is excluding from all participation in that property. The testatrix, at the time of making the 1995 Will, made no mention of her 1982 Will to her solicitor. The beneficiary under the 1995 Will differed completely from the beneficiaries under the 1982 Will. The question for the Court is not whether the deceased knew, when she executed the 1995 Will that she was giving all her property to the respondent and excluding all her other relations from any share in it, but whether at that time she was capable of recollecting who those relations were; of understanding their respective claims upon her regard and bounty; and of deliberately forming an intelligent purpose of excluding them from any share of her property. Albeit the testatrix had the capacity to communicate her testamentary wishes she had limitations in comprehending that she had to consider the claims of her other relatives and in remembering the existing dispositions she made in the previous 1982 Will. Furthermore, to successfully revoke a former will by a new will it is necessary to prove that the testatrix recollected the general contents of the previous will.

  Consequently, the 1995 Will should be deemed invalid. (per Edwards, J.A.)

  Wintle v. Nye [1959] 1 All E.R. 552 applied; Leger v. Poirier [1944] 3 D.L.R 1 applied; Murphy v. Lamphier [1914] 31 O.L.R. 287 applied; Marsh v. Tyrrell and Harding (1828) 2 Hagg. Ecc. 84 applied; Charles Harwood v. Maria Baker (1840) 3 Moore's PCC 282 applied.

• 2. The revocation clause contained in the 1995 Will effectively revoked any former will, being the 1982 Will. Although the testatrix never made mention of the 1982 Will to her solicitor, it cannot be assumed in the absence of evidence probative of that conclusion that her answer was due to loss of memory. The learned trial judge had evidence before him, which he rightly accepted, and which showed the close relationship that existed between the testatrix and her god-son and also showed that, at the relevant time, the testatrix often spoke of her family and other matters and not the same matter twice. The testatrix also had the presence of mind to make specific mention of her assets in her 1995 Will; in contra distinction to her 1982 Will. Taking all these factors into consideration her failure to either acknowledge or remember the 1982 Will or its contents or benefactors without more, is not sufficient to excite the suspicion of the Court. (per Pereira, J.A. and Baptiste, J.A.; Edwards, J.A. dissenting)

  The respondent as the propounder of the 1995 Will has the burden of proof to remove any suspicion of the Court. The absence of proof that the testatrix recollected the general contents of her 1982 Will was a matter that ought to have excited the suspicion of the court. Though there was ample evidence proving that the deceased had the capacity to communicate her testamentary wishes, this was not sufficient in law. There was no evidence advanced by the respondent before the learned...