Nellison Henry v Gresham Uriah Batson

• Jurisdiction: Grenada
• Judge: Actie, J.
• Judgment Date: 31 March 2021
• Judgment citation (vLex): [2021] ECSC J0331-1
• Docket Number: CLAIM NO. GDA HCV2013/0260
• Court: Supreme Court (Grenada)
• Date: 31 March 2021

[2021] ECSC J0331-1

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(PROBATE)

Before:

The Hon. Mde Justice Agnes Actie

CLAIM NO. GDA HCV2013/0260

In the Matter of the Estate of Venrole Batson, Deceased

and

In the Matter of the Civil Procedure Rules 2000 Part 68 Thereof

and

In the Matter of an Application by the Claimants Herein as Beneficiaries Under the Will of Venrole Batson, Deceased, for an Order for the Grant of Probate of the Will Dated 30th Day of May 2010 as the Last Will and Testament of the Deceased

Between:

[1] Nellison Henry

[2] Joy Henry

[3] Danny Batson

Claimants

and

Gresham Uriah Batson

Defendant

Appearances:

Mr. Alban John with Ms. Vern Ashby for the claimants

Mr. Ruggles Ferguson for the defendant

Actie, J.

1 The main issue in this case concerns the validity of two wills of the deceased, Venrole Batson, dated April 1 ^st 2010 and May 30 ^th, 2010, respectively.

Background

2 The deceased, Venrole Batson, during his lifetime lived at Morne Jaloux, St George, Grenada with his son Danny Batson, the third claimant and Nellison Henry, his son's uncle, the first claimant. Joy Henry, the second claimant, is the mother of Danny Batson. The defendant, Gresham Uriah Batson, is the brother of the deceased.

3 On April 1, 2010, Venrole Batson made a will naming the claimants and the defendant as beneficiaries. One month later, on May 30 ^th, 2010, Venrole made a subsequent will removing Gresham Uriah Batson (the defendant) as a beneficiary. Venrole Batson died on 16 ^th April 2013. The defendant filed a caveat on May 22 ^nd, 2013 to prevent the probate of the May 30 ^th 2010 will.

The Claim

4 The claimants in a Fixed Date Claim filed on July 8 ^th, 2013 seek an order of the court to declare that the will dated April 1 ^st 2010 is a pretend will and not the true will of Venrole Batson in that the devise in clause 4(iii) to the defendant, the brother of the deceased was made under the influence and upon the urgings of the defendant. The claimants state that the true last will and testament of the deceased is the May 30 ^th, 2010 will and they are entitled to an order pronouncing in favour of the said will and for a grant of probate in solemn form.

5 The claimants contend:

• (i) that the deceased had the requisite testamentary capacity to execute the last will and testament dated 30 ^th May 2010 and said will is the true and final will of the deceased (“the May 30, 2010 will”).

• (ii) The signature affixed to the May 30, 2010 will is the true signature of the deceased.

• (iii) The May 30, 2010 will satisfies all the legal requirements and formalities necessary under the Wills Act Cap. 340 of the 2010 Continuous Revised Edition of the Laws of Grenada, and the common law and is therefore valid in law.

• (iv) The May 30, 2010 will be being a valid will therefore superseded and revoked any prior will made by the deceased.

• (v) The will dated 1 ^st April 2010 (“the April 1, 2010 will”), even if validly made, has no effect in law as it was revoked by the true last will and testament of the deceased made on May 30, 2010.

The Defence and counterclaim

6 The Defendant contends that he did not exercise or use undue influence on the deceased regarding the making of the April 1 ^st, 2010 will and asserts that the will made at the Law Office of Danny Williams and Co., is the valid last will and testament of the deceased. The defendant alleges that the deceased did not have the requisite mental capacity to make the May 30 ^th 2010 will and did not have knowledge nor approved of the contents of the said will, more particularly the removal of the devise to him.

7 The defendant further alleges that the May 30 ^th, 2010 will was procured under suspicious circumstances. The defendant contends that the signature on the May 2010 will was not the signature of the deceased. The defendant states he had a very good relationship with his deceased brother and therefore the deceased would not have excluded him from his will. The defendant in his counterclaim seeks a declaratory order that the will of the April 1 ^st 2010 is the last will and testament of the deceased and not the will of the May 30 ^th, 2010.

Issues

8 The following issues are to be determined namely:

• (i) Whether the deceased had the requisite mental or testamentary capacity to execute the will and testament dated May 30, 2010.

• (ii) Whether the signature on the will dated May 30, 2010 is the true signature of the deceased.

• (iii) Whether the will dated May 30, 2010 revoked the April 1, 2010 as the true and last will and testament of the deceased.

9 The evidence in relation to the deceased's testamentary capacity is provided in three medical reports namely, Dr. Sonia Johnson, Dr. Evelyn Spencer and Dr. Dirk Burkhardt.

10 Dr. Sonia Johnson both in her report dated September 30 ^th 2013 and in cross-examination at the trial states that the deceased, Mr. Batson, was well known to her and had regularly attended to him as her patient since 2009. Dr. Johnson said she attended to Mr. Batson both at the Morne Jaloux clinic and at his home. She said that Mr. Batson suffered a stroke sometime in February/March 2010 and was treated at the General Hospital. Dr. Johnson described Mr. Batson as being independent and of sound mind despite his minor ailments. Dr. Johnson states that Mr. Batson attended the Morne Jaloux Medical Station periodically for medical check-ups and various minor ailments between the period from 2010 to 2012 and was of sound mind throughout all his visits and vocalized his medical concerns. In 2012, the team from the medical station made the first home visit where it was noted that Mr. Batson's speech was declining. After May 2012, Mr. Batson's communication decreased and eventually stopped completely, and his mobility decreased.

11 Dr. Evelyn Spencer MD, who examined the deceased at the insistence of the defendant, wrote a report dated May 3 ^rd 2020. In the report Dr. Spencer described the deceased as being fiercely independent. The report states that the deceased speech was disjointed which left him unable to find the correct term or phrase during conversation. Dr. Spencer formed the impression that the patient suffered from moderately- severe dementia of vascular origin and also suffered from short term memory loss. However, Dr. Spencer who prepared the report on behalf of the defendant was not called as a witness at the trial.

12 Dr. Dirk Burkhardt, a trained Psychiatrist, never physically interacted with the deceased but provided a medical report dated April 24 ^th 2015. His report is based on the medical reports of Dr. Sonia Johnson and Dr. Evelyn Spencer and three witness statements from Jacinta Young, Sonia Parke and Anthony Parke who witnessed the signing of the May 30, 2010 will.

13 Dr. Burkhardt having examined Dr. Spencer's report, in relation to the impression that the patient suffered from moderately- severe dementia of vascular origin and short-term memory loss, said that Dementia is a clinical diagnosis, the most common dementias being Alzheimer's and vascular dementia. Dr. Burkhardt said there is no clinical test that can confirm either of the two diagnoses in the proceeding. In his evidence under cross-examination Dr. Burkhardt also noted that Dr. Spencer is not a board-certified Psychiatrist. Dr. Burkhardt said that only the time course of the disease can determine the diagnosis. However, certain findings can support the diagnosis of Vascular dementia like a CT Scan which is not available. Dr. Burkhardt states that patients with Vascular dementia even in the late stages experience so called “lucid moments' when they are fully oriented and are able to make a valid will. Dr. Burkhardt surmised that all the witnesses indicated that the deceased was strong willed, alert and clear, and there was not any evidence to indicate that the deceased was not mentally competent to make his will on May 30, 2010. Dr. Burkhardt further stated that there was no clear indication or medical evidence from a neurological point of view to support the diagnosis of dementia. Dr Burkhardt states that even if the deceased was suffering from Vascular dementia as suggested by Dr Spencer, he was in a lucid interval at the time and from a psychiatric – neurological point of view was fully capable to make his will on May 30 ^th 2010.

14 The witness, Ms. Sonia Parke, a teacher by profession and neighbour of the deceased, recalled signing the will at the deceased's residence. She said she was aware that the deceased had a previous will. She said that the deceased informed her that his brother (the defendant), brought him to a lawyer and he made a will giving the brother four acres of land. Ms. Parke said that the deceased informed her that he wanted to change the will and asked her if she could assist him in finding someone to help him make a new will as he wanted to remove his brother from the will. Ms. Parke said she made contact with Mr. Anthony Parke who promised to talk to Mr. Batson to obtain the instructions. Ms. Parke states that as far as she was aware no one pressured or influenced the deceased to make a new will. She said that she recalled signing the will together with the other witnesses at the deceased residence.

15 Mr. Anthony Parke, former Principal and Justice of the Peace, said that he was well acquainted with the deceased. He said that received information that Mr. Batson wanted to see him. He said he visited Mr. Batson at his home and described him as being mentally alert and able to speak. Mr. Parke said that Mr. Batson asked him to formulate a will for him. Mr. Batson informed him that his brother had taken him to Danny Williams' law firm to make a will leaving him four acres of land.. Mr. Parke said that Mr. Batson said he would “outsmart him (the...