Faye Patricia Bogle v Aldington Bruce Murray

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Martin-Swaby, J.
• Judgment Date: 18 May 2025
• Year: 2025
• Docket Number: Claim No: SU2022ES01406

Faye Patricia Bogle

and

Aldington Bruce Murray

Martin-Swaby, J.

Claim No: SU2022ES01406

Supreme Court

Appearances:

Ms. Nadine Lawson instructed by Mensa Legal Services appeared for the Claimant.

Ms. Shawn Steadman instructed by Alexander Williams & Co. appeared for the Defendant.

BACKGROUND

INTRODUCTION

Martin-Swaby, J.

1 These proceedings concern the Estate of the late Mr. Melvin Reid Kindness (“Mr. Kindness”) who died testate on April 1, 2012. In this matter, the Claimant, Mrs. Faye Patricia Bogle, the sole child of Mr. Kindness and a beneficiary under his Estate, challenges the validity of a purported Last Will and Testament of Mr. Kindness dated January 15, 2006 (“Will 1”) which was admitted to probate on August 27, 2013 and under which the Defendant, Mr. Adlington Murray was appointed as an executor.

2 The essence of the Claimant's case is that Will 1 is invalid and ought to be revoked along with the Grant of Probate. In its stead, the Claimant seeks the reinstatement of the Last known Will and Testament of Mr. Kindness dated May 12, 1999 (“Will 2”) which the Claimant argues immediately preceded Will 1 and is the sole, authentic and legally valid Last Will and Testament of Mr. Kindness. Surely, the reliefs sought, if granted, would have implications for the administration of the Estate of Mr. Kindness and the distribution of its assets.

THE CLAIM

3 The Claimant has sought relief through filing a Fixed Date Claim Form on May 12, 2022 and which was Further Amended on December 6, 2022. The Claimant's claim is brought approximately 9 years after the Grant of Probate.

4 In the Further Amended Fixed Date Claim Form, the following reliefs are sought:

• 1. That this Honourable Court shall pronounce against the force and validity of the alleged last Will and Testament dated January 14, 2006, of the deceased Melvin Reid Kindness, and declare the same null and void for the reason that the alleged Will is a forgery, as the signature thereon is not the signature of the deceased Melvin Reid Kindness.

• 2. That the Probate of the alleged Will and Testament dated January 15, 2006 of Melvin Red Kindness, deceased, by this Honourable Court on the 27th day of August 2013 to Adlington Bruce Murray, Executor, of the said alleged Will in the estate of Melvin Reid Kindness, deceased, be called in and revoked.

• 3. That this Honourable Court shall pronounce for the force and validity of the last will and testament dated May 12, 1999 of the deceased Melvin Reid Kindness, being the script referred to in the Affidavit of Faye Patricia Bogle dated 10th day of May 2022 and filed on May 12, 2022, and a copy of which exhibited thereto, in solemn form, and direct that probate be granted to the Claimant Faye Patricia Bogle in Solemn Form.

• 4. Alternatively, an order that the Claimant be entitled to make an application for Grant of Probate of the Will dated the 12th day of May 1999, a photocopy which is marked “A”, and annexed hereto as a true copy of the last Will and Testament of Melvin Reid Kindness in which the Claimant is a named beneficiary.

• 5. That the deceased Melvin Reid Kindness died testate and his estate is to be distributed in accordance with his last will and testament dated the 12th day of May 1999.

• 6. That in accordance with section 158 of the Registration of Titles Act, the Registrar of Titles be ordered to cancel the entries on the Duplicate Certificate of Title of the land registered at Volume 1077 Folio 58, transferring the property on transmission on August 16, 2016 and on transfer to Rosa-Lee Murray Kindness absolutely, under a grant of probate of the alleged forged will, representing a transmission from the estate of the widow of Melvin Reid Kindness, Rosa-Lee Murray Kindness, to whom the said land had been transferred upon probate of the alleged forged will, to one Brenda-Lee Curling.

• 7. That in accordance with section 158 of the Registration of Titles Act, the Registrar of Titles be ordered to cancel the Certificate of Title in respect of the land formerly registered at Volume 503 Folio 137 and now registered at Volume 1503 Folio 18, and issue a new title in the name of the Claimant and the estate of the widow of Melvin Reid Kindness, Rosa-Lee Murray-Kindness, as tenants in common in accordance with the will dated May 12, 1999 of Melvin Reid Kindness.

• 8. That the costs of this action be borne by the Defendant

• 9. That there be liberty to apply.

5 The Particulars of Fraud as contained in the Particulars of Claim filed on May 12, 2022 are as follows:

• a. The Defendant had or did have in his possession a document alleging to be the purported last Will and Testament of the deceased which he knew or ought to have known was not a genuine Will of the deceased;

• b. The Defendant knew or ought to have known that the deceased did not make the purported Will not authorize its making by or on his behalf;

• c. The Defendant, in probating the purported Will, has fraudulently misrepresented to this Honourable Court and the beneficiaries of the estate, that the purported Will was in fact that of the deceased;

• d. The Defendant perpetuated this fraud by his continued reliance on and utilization of the said Probate and purported Will to deal with the assets of the deceased in a manner prejudicial to the beneficiaries of his estate.

6 The Claimant asserts that the true wishes of Mr. Kindness upon death is not contained in Will 1 which was admitted to probate. Her case is that his intentions upon death are contained in Will 2 which was transmitted to her by Mr. Kindness in the year 2000. However, following the Grant of Probate, the Estate of Mr. Kindness has been substantially administered and with the death of his wife, Mrs. Rosa Lee Murray Kindness (“Mrs. Kindness”) in 2016, who is a beneficiary under Will 1, property, that the Claimant now claims an interest under the Will 2, has been further administered by Mrs. Kindness' Estate.

7 The Claimant's case is that Will 1 was procured by fraud and Mr. Kindness' signature was forged. Her case is that Mr. Kindness was blind at the material time and could not have signed Will 1. There is nothing in Will 1 which indicates that it was read over to Mr. Kindness. The attesting witnesses to Wil 1 gave evidence in this trial which indicated that Will 1 was not read over to Mr. Kindness before he signed the document.

DEFENCE

8 The Defence was filed on November 17, 2022. The essence of the Defence is that at the time of signing Will 1 it is unknown to the Defendant as to whether Mr. Kindness was blind. The Defendant was not present and was therefore unaware as to the state of Mr. Kindness' “blindness or visual acuity and the Claimant is put to strict proof of same.” Further, that Will 1 has conformed to all other formalities, there was no misrepresentations made to the Court in probating Will 1 and as such no fraud was perpetuated as alleged by the Claimant or otherwise.

9 The Defendant asserts that Will 1 is valid and the presumption of validity has not been displaced by the Claimant. His case is that fraud has not been proved to the requisite standard. The Defendant also urges this court to refuse the reliefs sought on the basis that the Claimant sat by and watched Mr. Kindness' Estate being administered. He further asserts that the Claimant, having become aware of Will 1 in the year 2013, she is barred by a probate doctrine of laches, which is a “cousin” of the equitable doctrine of laches. Additionally, the Defendant states that relief should not be granted as not all the relevant parties have been made interested parties in these proceedings.

THE EVIDENCE

The Claimant's Evidence Dr. Valence Jordan

10 Dr. Valence Jordan was called as the first witness in support of the Claimant's case. His Affidavit filed on November 3, 2023 was admitted as his evidence in chief. His evidence is that he is a Consultant Ophthalmologist and has been practising in Jamaica since 1994. He operates a private practise both in Saint James and Trelawny. Mr. Kindness was his patient for the period November 1995 until March 2004 (one decade). This would have been approximately two years prior to the execution of Will 1 in 2006.

11 Mr. Kindness was being treated for glaucoma. Dr. Jordan's evidence is that on seeing Mr. Kindness in 1995, Mr. Kindness' left eye was blind as he could only see hand movements at a distance of one foot from this eye. By 1997, the glaucoma started affecting the right eye which was also affected by cataract.

12 Dr. Jordan's evidence is that by the year 2001, Mr. Kindness had reached the threshold of legal blindness. At that point, his visual acuity in both eyes was reduced to mere perception of hand movements, with the added complication of a cataract obstructing vision in the right eye. Dr. Jordan opined unequivocally that, in his professional view, an individual with such severely compromised vision would lack the functional capacity to read or meaningfully sign a document.

13 A medical report was attached to this Affidavit and was identified as VJ1. This Medical Report includes details regarding Mr. Kindness' first attendance at the practise on the July 29, 1995 and which contained the above conclusion.

14 In cross examination, Dr. Jordan indicated that the purpose of his treatment for Mr. Kindness was to decrease and maintain the pressure in his eyes within the normal range. He stated that there was improvement although there were times when the pressure was raised a bit outside of the normal range, in these instances he indicates that the medication would be adjusted. The issue with the pressure in the eye is that if it rises significantly, it can affect the functioning of the optic nerve thereby further deteriorating vision. He stated that he expected Mr. Kindness to improve over time.

15 This prompted Counsel for the Defendant to ask the following question:

Question: The visual acuity can...