Louise Graham v Angella Graham
| Jurisdiction | Jamaica |
| Judge | Palmer, J |
| Judgment Date | 26 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2015P00436 |
[2022] JMSC Civ 145
CLAIM NO. 2015P00436
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Validity of a Will — Whether the testator was unduly influenced to execute his final Will — Whether the testator requested the requisite testamentary capacity at time he prepared his Will
Tamara Francis Riley-Dunn and Karlene McFarlane Richards instructed by Nelson Brown Guy and Francis for the Claimant
Gail English instructed by Gilroy English & Co for the Defendant
The Claimant, Louise Graham (now Louise Proctor), is the daughter of the deceased, James Graham. The Defendant, Angella Graham, is his widow. Mr. Graham died testate on or about November 15, 2014, and prepared three Wills between December 2013 and March 2014. The first two Wills, in December 2013 and February 2014, were prepared by Karene Stanley-Jones, Attorney-at-Law, and are substantially the same in substance, save that in the February 2014 Will, Mrs. Graham was removed as one of the executors, and her daughter Diane Forrester was removed as a beneficiary. The March 2014 Will is a significant departure from the prior two in that the entire estate is left to Mrs. Graham, save for a devise of One Million Dollars to Mrs. Proctor.
The Claimant challenges the validity of the March 2014 Will primarily on the ground that she says it was obtained by undue influence on the part of Mrs. Graham over the will of Mr. Graham. In her Fixed Date Claim form she sought orders as follows:
(i) A decree pronouncing against the validity of the disputed Will of James Graham dated March 19, 2014, as the procurement of same was by undue influence;
(ii) A decree pronouncing for the validity of the Will of James Graham dated February 19, 2014, as the sole and valid Last Will and Testament of the deceased.
Orders that:
(iii) The Claimant is granted permission to apply for a Grant of Probate in the deceased's estate pursuant to the February 19, 2014 Will in her sole name.
(iv) The Defendant is to account for sums from the deceased's estate that she has put to her own use including sums held in the [RBC Bank account].
(v) The estate is to be refunded with the sums withdrawn from the testator's bank account by the Defendant in particular the [RBC Bank account].
(vi) The Defendant releases documentation relating to the circumstances as to the death of the deceased.
The Defendant rejects the allegation of exerting undue influence over her husband in the preparation of the March 2014 Will and counterclaims as follows:
(i) That the Court shall pronounce against the force and validity of the Will dated February 19, 2014 on the ground that it revoked all the contents of any prior Will.
(ii) That the Court shall pronounce the Will dated March 19, 2014 to be the deceased's Last Will and Testament and the Defendant may proceed in her application to obtain a Grant of Probate thereof.
Louise Proctor's in her witness statement, the contents of which, save for redactions, stood as her evidence in chief, stated that her father was an engineer working in England up until his retirement at about sixty years old. She described him as financially stable but vulnerable to exploitation of his loving and kind nature; she seems to imply that Mrs Graham is one such person. Mr. Graham met the future, Mrs. Graham, at his sister's home in Jamaica, where she worked as a helper, and with the significant age difference (Mr. Graham being sixty and his future wife being twenty-two with a young child), Mrs. Proctor's suspicion seems to have been even further fuelled. It did not help that the two were married in England six months after meeting.
Shortly after their nuptials, Mrs. Graham returned to Jamaica, and eventually, Mr. Graham sold his home in England and joined her. Mrs. Proctor said that her father fell ill in 2009 and had surgery to amputate one of his legs, below the knee. In 2013 she stated that her father informed her of Mrs. Graham's ill-treatment of him, including leaving their bedroom to another room and leaving him alone for days at a time. She claimed that her father wanted Mrs. Graham to leave his house and pay someone to be his caregiver but didn't as he would have to throw her out.
Mrs. Proctor claimed that her father told her he feared his wife, and after his admission to hospital on several occasions, had lost his will to live. She said he complained of loneliness in his marriage, and concluded that her father believed he was close to death when he prepared the December 2013 Will. When he prepared the February 2014 Will, like in the December Will Mr. Graham left his home to Mrs. Graham, his nephew Baldwin Jones, and also left Mrs. Proctor the proceeds of the RBC bank account, which she said was in line with his promise to leave money with her for his grandchildren.
Mrs. Proctor said that she visited her father in May 2014 when he asked her for a copy of his February 2014 Will and told her that Mrs. Graham had found out about it and became upset. Mr. Graham told her about the March 2014 Will, she alleged, and how Mrs. Graham had argued with him when he raised the issue of including Mrs. Proctor in his Will. According to what she alleged her father told her, this prompted the Attorney to place them in separate rooms. According to Mrs. Proctor, it was Mrs. Graham who gave the Attorney Mr. Graham's Will and threatened him to sign it. Mrs. Proctor alleged that her father assured her that he planned to ‘use’ the February 2014 Will and not the March 2014 iteration; a suggestion she knew made no sense. However, not wanting to distress her father further, she did not press him on the issue but deduced that he did not understand the March Will was his final Will.
Mrs. Proctor claims that her father attempted to secure the funds in the RBC bank account for her, but Mrs. Graham resisted. Mrs. Graham promised to assist in having her name added to the bank account instead but never did so. Mrs. Proctor also alleged that her father informed her that he had hidden money inside the house for her to assuage her concerns about Mrs. Graham handling his bank book. According to the Claimant, the plan was for her aunt to hand her this hidden win fall upon her father's death, but the funds could not be located when he died. Mrs. Proctor is convinced that Mrs. Graham found the money and never handed it over to her, and claims Mrs. Graham admitted as much to her.
Mrs. Proctor claimed that her father was very depressed in the months before his death and told her that Mrs. Graham did not treat him well or show him much concern. Mrs. Proctor believed that Mrs. Graham knew that his condition was very serious, and neglected him to hasten his death. She found the circumstances of the preparation of the March 2014 Will to be “unusual and even suspicious” as its provisions did not reflect what her father told her was his intention for her and his grandchildren in regards to his estate. Also, in the February 2014 Will, Mrs. Proctor had been named an executrix, which was undone in the March 2014 Will, where Mrs. Graham and her daughter, Dionne Forrester, were so named. Mrs. Proctor asserted that with the years of mistreatment complained of by her father, she found this suspicious.
Mrs. Proctor stated that the argument in Counsel's chambers that her father told her of, should have alerted the Attorney-at-Law that her father was not in the right mental state to be adjusting his Will. The very presence of Mrs. Graham, in Mrs. Proctor's view, should have been viewed by Counsel preparing the March 2014 Will, as suspicious, and proved that Mrs. Graham was truly there to dictate the terms of the Will. In her view, her father was coerced to change his Will and afterwards, maintained an erroneous view that his February 2014 Will was still effective.
In cross-examination, Mrs. Proctor stated that she was eighteen or nineteen years of age when Mr. and Mrs. Graham were married and, after his move to Jamaica, kept in contact with her father by writing letters, making phone calls every weekend and visiting when she could. Her visits during the over twenty-six-year period amounted to three or four occasions but Mr. Graham also visited England during that time. It was not until about three years before he passed away, however, that she claims that she became his confidante.
Mrs. Proctor did not know the surgeries that her father had done, when they had been done or their cost. Even in her witness statement, she refers to surgery to ‘one of his legs’, which suggest that she did not know which leg. She stated that she knew he had his bank account and took care of his medical costs from it. While she did not know the available sums in his bank account, she was confident that the sum would cover his surgical procedures, especially as he assured her as much in June 2014, and owed nothing. Mrs. Proctors stated that though she was aware that her father had had several surgeries, she did not visit him in the hospital as Mrs. Graham told her not to but that she would be contacted and informed when she should. She later admitted that she would not have been able to travel due to her finances and the cost of travelling with her children. Mrs. Proctor vehemently rejected the suggestion that she was not close to her father and addition to the regular calls and letters, assisted him with his mobility needs after his surgery. She knew he had diabetes and had the amputation, but blamed the fact that she could not speak to the number, particulars or cost of his surgeries on the fact that Mrs. Graham did not inform her.
Baldwin Jones is the nephew of Mr. Graham and one of the beneficiaries under the February 2014 Will. He viewed Mr. Graham as a prosperous individual who had made his wealth working with...
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