Hubert Martells v Ena McClarty and Michael Knight (Executors of estate Canute Martells)

• Jurisdiction: Jamaica
• Judge: BROOKS J.
• Judgment Date: 25 January 2005
• Judgment citation (vLex): [2005] 1 JJC 2501
• Court: Supreme Court (Jamaica)
• Date: 25 January 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

HUBERT MARTELLS

CLAIMANT

AND

ENA MCLARTY

1 ^ST DEFENDANT

AND

MICHAEL KNIGHT (Executors of Estate Canute Martells)

2 ^ND DEFENDANT

WILLS - Mental capacity to execute

BROOKS J.

1 Canute Martells died on October 18, 2003. He is said to have executed his last will and testament on January 15, 1999; almost five years earlier.

2 The Claimant Mr. Hubert Martells claims an order that the Court pronounces against the validity of that will. For convenience, I shall refer to these persons as Canute and Hubert respectively. No disrespect is intended by the reference.

3 Hubert, who is ordinarily resident outside of Jamaica, claims that the will is null and void because it was procured by fraud by Canute's wife (now widow) Pearline Martells. Hubert further claims that Canute did not have the mental capacity to execute a will at the time that this one is said to have been signed.

4 The Defendants, who are the executors named under the will, and Mrs. Martells, deny Hubert's assertions. In fact Mrs. Martells says she was not even aware of the existence of the will until August 2003.

5 There were a number of procedural difficulties attending this application but the essential question for the Court is whether it is satisfied that the will was executed in accordance with the provisions of the Wills Act, and whether Canute had the necessary mental capacity at the time of execution.

6 The procedural difficulties mentioned above include the following:

• a) The executors, having filed an acknowledgement of service, did not file a Defence to the Particulars of Claim, but rather filed Affidavits denying Hubert's claim and asserting their own position. Further, no counterclaim was filed as is required by Rule 68.58 of the Civil Procedure Rules. The result is that even If there is a finding in their favour, the will cannot be found to be proved in these proceedings.

• b) Hubert filed Affidavits in response to those filed by and on behalf of the executors. His affidavits were executed in the presence of a Notary Public in New Jersey in the United States of America. They, however, were not accompanied by the certificate, which is required by Section 22 of the Judicature (Supreme Court) Act, to verify the Notary's signature and authority. In addition his affidavits were a strange combination of photocopies or facsimile copies of signatures and of original signatures.

7 These defects did not come to the attention of the Court while the parties were present before it and so the parties did not have an opportunity to address the issues. The court will therefore exercise its discretion to allow these documents to stand despite their defects.

8 Finally in this regard, it is to be noted that on November 4, 2004 an order was made that Mrs. Pearline Martells should file an affidavit disclosing the names and addresses of all doctors who had rendered treatment to Canute between 1998 and 2003, and that every such doctor should supply a report of his diagnosis and treatment. Mrs. Martells belatedly filed an affidavit in response to that order. In that affidavit she stated that Canute was treated as an in-patient at the University Hospital of the West Indies (UHWI) on various dates between July and October 2003.

9 The Defendant's Attorney-at-Law produced a medical report on 4th January 2005. It was dated December 3, 2004 and was signed by a Dr. Gayle of that Hospital. The production was well after the date set for closing submissions to have been tendered. The delay is of special note because the contents of the report would seem to support the Claimant's case. I shall give details of the contents later in this judgment. (Both parties were given the opportunity to, and did make submissions in respect of the report.)

10 The Claimant's case

11 The main thrust of Hubert's assertion is that in July 2003 when he went to see Canute, the latter did not recognize him, had to be assisted in what he was doing and had to be confined by a locked gate, to prevent him wandering off.

12 What is significant about his visit to Canute is that it was four and a half years after the date of the purported will. The only evidence proffered by Hubert as to Canute's state of mind in or about 1999 is contained in the testimony of Mr. Neville Mais.

13 Mr. Mais deposed that in late 1997 he took Canute to the United States Embassy, for the latter to attend an interview. He says that at the end of the interview, Canute didn't say anything about it, but just handed over to him the refusal document that had been issued. Mr. Mais points to this behaviour as being abnormal. Significantly however, Mr. Mais did not indicate that there was anything amiss with Canute's behaviour before the interview.

14 I find that there is nothing in that testimony which could lead to...