Jeremiah v Tomlinson and another
| Jurisdiction | Jamaica |
| Judge | P.A. Williams, J |
| Judgment Date | 30 September 2009 |
| Judgment citation (vLex) | [2009] 9 JJC 3001 |
| Court | Supreme Court (Jamaica) |
| Date | 30 September 2009 |
IN THE MATTER of an application for an executor to accept or refuse probate pursuant to part 68.49 of the Civil Procedure Rules 2002 (as amended)
IN THE MATTER of the probate of the will in The estate of Joseph Jeremiah (deceased)
WILLS - Probate - Challenge to validity of will - Wills Act
Background
This matter is an unfortunate example of a family torn-apart, embroiled in a dispute over what is commonly referred to in Jamaica as "dead lef'.
The Jeremiah family -2 sisters, a brother and a brother-in-law are now before the court due to property left by their father in Martha Brae, Trelawny.
Joseph Samuel Jeremiah died on the 16 th of April, 1994 and left a document purporting to dispose of his house and its land registered at Volume 949 Folio 422 of the Register Book of Titles. He gave this property to his daughter Olwen Garret Jeremiah -the claimant. On the face of it, this will was witnessed by Winston Tomlinson - son-in-law of the deceased and now 1 st Defendant and Wilbert Jeremiah son the deceased, on 6 th February, 1994.
The 2nd defendant is the daughter of the deceased, wife to the 1 st defendant and sister to the claimant. The 1 st defendant and the claimant were named as executors of this will.
The claimant sought her inheritance by having this will probated. Her efforts are being thwarted as the persons who signed as attesting witnesses say they did not sign the document until after the death of Mr. Jeremiah.
This being a clear breach of the requirements of the Wills Act means the will was not properly and duly executed and cannot be probated.
The claimant filed a fixed date claim form on the 23 rd July 2008 and seeks that the court grant an order pronouncing for the validity of the will of the deceased Joseph Jeremiah dated 4 th February, 1994 or alternatively if the will is pronounced as valid that the claimant is entitled to a grant of probate of the last will of Joseph Jeremiah deceased.
When the hearing of the matter commenced on March 11, 2009, an amendment was sought for the heading of the fixed date claim form to read for the court to pronounce on the validity of the will of the deceased Joseph Jeremiah dated February 6,1994 pursuant to 68.54.3 (iii) of CPR 2002.
The evidence
For the claimant
In her affidavit filed March 6, 2009, the claimant asserted that on the day after her father's funeral while she and her sister and her husband, and their brother were sitting on the porch of her sister's home the 1 st defendant read the last will and testament of her father by which he had devised to her his residence at Martha Brae in the parish of Trelawny.
She stated she was not present when this will was dated or signed by her father or the attesting witnesses. She denies knowing at that time that this will was undated and unsigned by any witnesses.
She later learnt her sister was doing business without permission on the property. However, her sister agreed to pay rent and in turn a lease would be signed in the sister's favour to facilitate this. She said this was done on one of her visits to Jamaica when it was also agreed an account would be opened at N.C.B. for rent to be lodged.
In 2006, she explained, when the 2 nd defendant was visiting her in Florida a discussion took place about the title for the property being placed in the claimant's name and about the rent. This she said led to the 2 nd defendant telling her for the first time that the will their father had left had not been dated or witnessed.
The claimant went on to complain about the fact that the 2 nd defendant and her family were reaping the benefit from the property while not paying rent.
In her evidence in chief she explained that the conversation referred to in her affidavit took place in 2005 in Key West and not in 2006.
Under cross-examination she claimed that she never looked at the will which was read by the 1 st defendant. She is in no position to say whether or not it was signed by anyone at this time. She denied asking her brother Wilbert Jeremiah to sign as a witness and was insistent that she was not aware that the will was not valid.
For the defendants
The 1 st defendant in his affidavit stated that it was after the funeral while at the home of the 2 nd defendant, he was given a document by her which appeared to be the last will and testament of the said Joseph Jeremiah. He read it out in the presence of the claimant, the 2 nd defendant and Wilbert Jeremiah. He noticed it was signed by the testator but was not dated or witnessed. Wilbert Jeremiah questioned what should be done and the 2 nd defendant said they would assist the claimant by just witnessing and dating the document.
This was done by himself and Wilbert Jeremiah in the presence of the claimant and the 2 nd defendant.
He stated further that the claimant and the 2 nd defendant are now estranged and the latter has been asked to deal with the estate but has not done so. He therefore decided to refrain from taking steps as an executor despite requests to do so.
In his evidence-in-chief, he maintained that when he signed the will, Joseph Jeremiah was not present.
He admitted that he told the claimant that she should be paid rent for the use of the property, but points out that he had expended monies to improve it. He further indicated that it is his son who now operates a business on the property; permission having been sought and obtained from the claimant.
On the issue of a bank account for payment of rent, the 1 st defendant maintained there was no need for any discussion about opening a new account as she already had one at a credit union.
Under cross-examination he admitted his knowledge of a discussion while he was in Long Island concerning problems between the sisters including the probating of the will. He had not been in Key West and was unaware of the discussions that had taken place then.
Concerning the will; the 1 st defendant agreed that he has never said the document was not in the handwriting of the deceased. He was familiar with both the handwriting and the signature of the deceased and acknowledged the document appeared to be that of the deceased.
He indicated the deceased had written and destroyed other wills before - indeed he was in the habit of writing wills.
The 1 st defendant maintained that the 2 nd defendant had given him the will to read after stating she had found it at the deceased's house. He was not with her when she found it, she did not tell him where she found it and he didn't ask. He doesn't recall when she gave it to him initially, but it would have been a few days before the funeral. The explanation she had given him, was that she had gone to her father's house a few days before when no one was there and had gone through his things and found the will.
Eventually following discussions firstly between himself and the 2 nd defendant and then between himself, the 2 nd defendant and the claimant a decision was made.
The 2 nd defendant he said had urged and he had agreed that the will should be signed and given a date prior to the death, "so person in will could benefit".
He referred to a conversation held with the 2 defendant where she had expressed thinking it was strange and unfair that her father should have left the property to the claimant as they had been the ones who cared for their parents. She also felt that it was because of a disagreement that she had had with her father before he died that he had left the property to the claimant. He also said that she recognized she could be "terrible" and just destroy the will but chose to do the "next best" thing and get it signed and witnessed.
He acknowledged that the issue of probating arose when the sisters started having problems and when the claimant wanted her name on the title.
As to the circumstances surrounding the reading of the will, the 1 st defendant maintained all four persons had looked at it. The claimant not only saw it then but had known of it from before the funeral. She had seen it before the reading had discussed it and it was agreed Wilbert Jeremiah would be asked to sign. He asserted that when asked, Wilbert Jeremiah reluctantly agreed and signed after he had done so. He spoke of them using the same pen to sign. He dated as well as signed it. He admitted to placing a line through the blank, parts at the front and on the second page to ensure no one would be able to write on it. He acknowledged that there were two different coloured inks appearing on the document but since he knew the handwriting on it, this fact was of no significance to him.
Wilbert Jeremiah he insisted was the only person who signed in his presence.
When further pressed he alleged he was never asked to probate the will, he never kept it in his possession but it was always with the 2 nd defendant to whom the claimant herself had handed it after reading.
It is to be noted that the 1 st defendant recognized that the actions he took in signing the will in the absence of the testator and after his death, were not right but said he felt at the time this should be done so the claimant would benefit from the deceased's last wishes.
The 2 nd defendant in her affidavit said she found the will in the desk of the deceased. She said it was after the burial of her father that the four persons concerned were at her home when the will was read by the 1 st defendant. She said it was Wilbert Jeremiah who asked what was to be done and she it was who pointed out...
To continue reading
Request your trial