Wilson v Vaz et Al

• Jurisdiction: Jamaica
• Judge: Bingham, J.
• Judgment Date: 05 April 1990
• Date: 05 April 1990
• Court: Supreme Court (Jamaica)
• Docket Number: P.725 of 1985

Supreme Court

Bingham, J;

P.725 of 1985

Wilson

and

Vaz et al

Appearances:

Crafton Miller and Nancy Anderson instructed by Crafton Miller and Company for the plaintiff

Dennis Daly instructed by Thwaites, Fairclough, Watson and Daly for first named defendant.

Errol Hall for the second named defendant

Will - Validity — This is a claim and counterclaim of a purported will executed in 1983 and the original will in 1978 — Signature of testator suspect in later will — Held that the suspect document could not be admitted to probate — Counterclaim for will of 1978 to be admitted to probate granted

Bingham, J.

1 – The Claim and Counter Claim in this matter relates to a Will purported to be that of the late William Warrington McPherson and to have been executed on 20th November, 1983.

2 The writ seeking proof of this Will in solemn form was lodged in this Court on 6th June, 1985. The matter came on for hearing in July 1989, over five years after the Testator's death. This hearing was concluded just prior to the commencement of the long, vacation and before my own vacation leave commenced on 18th September which meant that no opportunity then existed to enable a judgment to be prepared and made ready before I resumed my duties at the end of January, 1990.

3 As the allegations set out in the Counter Claims filed in this matter are of the gravest nature and carry with them serious implications should there be a finding in favour of the first and second defendants, there has been the added need for me to proceed to examine, evaluate and assess the evidence in this mutter with the most scrupulous care. This Judgment that I now propose to deliver seeks to do just that.

The Evidence

4 William Warrington McPherson died on 17th June, 1984 at his home at 38 Ward Avenue, Mandeville, Manchester at the age of 74 years. He had been predeceased by his wife Lucille Mignonette who died in 1975 after a prolonged illness lasting some three years and survived by his throe children, Dr. Delroy McPherson, Dorrett Wisdom and Lucille Vaz as well as his three sisters, Louise Caroline Levy, Judith May McPherson and Nora I. Miller.

5 The deceased from the evidence which emerged during the hearing; had been a very successful businessman who was endowed with a shrewd disposition, careful and meticulous in managing his affairs and one who from the nature of the property which he left behind, invested his money mostly in real estate. Having regard to the steep escalation in the value of real estate in Jamaica in general, and towns such as Mandeville with its salubrious climate in particular, it would be idle to contend that the present value of the deceased estate both at death and at current market values would not be considerable.

6 The deceased I am told was one who, apart from accumulating material wealth, served his community well and who apart from being a businessman operating a Pharmacy in Mandeville for many years and up to 1973 when he retired from business, was a Justice of the Peace from the early 1950's and one who in that capacity would have been required to perform a number judicial and other official functions as a result of that status.

7 From the evidence it is clear that the deceased was one who related well with persons in many walks of life and who was well respected in the community in which he lived and prospered.

8 It is common ground, however, that with all these attributes among which might be added the obvious joy and pleasure which the deceased must have got from having seen his son and eldest child Delroy qualify and succeed Medical Practitioner and his daughters marry and produce grandchildren. With all this in mind one might have assumed that at his death the deceased would have been contented in his mind that he was leaving a world in which he had found to a large: measure “that peace which passeth all understanding”. This was however, not to be for two main reasons:–

1

In 1975 following his wife's death there was a bitter quarrel with his son Delroy, the details of which was not disclosed during the hearing, which brought about a deep rift between them which was to last up to and even beyond his passing. It was of so extreme a nature as not to cause Defray to attend his funeral and in so doing to pay his last respects to his late father. 2. This rift, or feud for want of a better word, between the deceased and his son, Delroy, caused the deceased to become estranged from some of the near members of his family and this was particularly so as between Delroy and his sister, Mrs. Dorrett Wisdom with whom he as in the case of the deceased now no longer enjoyed any relationship. This also resulted in the relationship between the deceased and the other immediate members of his family becoming somewhat strained.

9 Delroy had, at his request made to the deceased, been disinherited in a Will executed by him on 7th April, 1978 at the offices of his long-standing attorneys-at-law, Delaphena and Iver.

10 The plaintiff had been living in the United States of America up to 1972 when her late mother took seriously ill, at which time she was summoned home to attend to and care for her. Following her mother's death in 1975, she remained on in Jamaica assisting the deceased in managing his affairs and also operating a Pharmacy in Mandeville.

11 It is common ground that the deceased despite his advancing years handled most of his personal affairs himself. He has been described by both his son Delroy and the plaintiff as being a very private person and one who did not discuss his affairs with members of his family. He was minded to confine such matters to his long time legal advisers, Delaphena and Iver.

12 It was against this background that on 7th April, 1978, almost three years following his wife's death and added to this later down in the same year, the bitter quarrel between his son Delroy and himself and with the feud that, had developed still remaining unresolved, that the deceased set about the task of disposing of his earthly possessions by executing his last Will arid Testament at the offices of his long standing Attorneys-at-Law, Delaphena and Iver. This Will, the validity of which is not in dispute was subsequent to the deceased's funeral, and more particularly one week later, read at this office in the presence of the plaintiff and her sister Mrs. Lucille Vaz, they being the two persons named as the personal representatives in the: Will. They were also, the two principal beneficiaries named under the various dispositions in that document, as apart from the devise of a dwelling house to two of the deceased's sisters and a bequest to the other, the bulk of his estate was left to his two daughters. It is of some significance and a matter which bears repetition that the manner of the execution of this Will was, given the description of the deceased by the plaintiff who assisted him in administering his business affairs following his wife's death in 1975, as well as by his son Dr. Delroy McPherson with whom he enjoyed an excellent relationship up to 1975 when the quarrel resulted in all association between them being severed, was entirely in keeping with the nature of the man whose disposition was one who was described by the plaintiff as being a private person, meticulous and careful in handling his affairs and who did not like to be questioned about his affairs.

13 It is of further significance that although his eldest daughter and business manager, Mrs. Dorrett Wisdom testified that she had some knowledge of the existence of this Will and where it was to be located, her evidence is totally lacking as regards the circumstances through which she came by the means of such knowledge or what prompted the deceased to make certain remarks which she sought to attribute to him. What is clear is that up to the time of the reading of the Will at the offices of Delphena and Iver one week after the deceased's funeral the plaintiff had up to then no knowledge of its contents. She would then have learnt for the first time, not only of the fact that the bulk of the deceased's estate was to be shared almost equally between her sister and herself, but also of the fact that they were both named as personal representatives to administer to the estate.

14 It was the plaintiff who in her evidence sought to portray a strained relationship as existing between the deceased and his sisters following the feud which developed between, the deceased and her brother Delroy in 1975. This, it was no doubt being contended would account for the changes in disputed the Will (Exhibit 1) in so far as it affected certain dispositions made in the 1978 Will. In this regard it is of crucial importance that there is not one scintilla of evidence that the relationship between the deceased and any of the beneficiaries named in the 1978 Will had altered in any manner for the worse between the execution of that document on 7th April. 1978 and his demise on 17th June 1984. Nor for that matter is there any evidence that the confidences and trust which this very private person reposed in his longstanding attorneys-at-law, Delaphena and Iver, had altered or waned within that period. This fact is of importance as the deceased would certainly have had that in contemplation when he was executing this Will.

15 Mrs. Wisdom sought to suggest that the deceased had ceased consulting that firm for sometime before his death. She did not give any reason for such an action on his part nor am I minded to conclude from the absence of any reason that any existed. Moreover, had this been so, given the...