Barrington C. Smith v Betty Norma Smith-Forbes
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P |
| Judgment Date | 31 January 2023 |
| Neutral Citation | BS 2023 CA 12 |
| Docket Number | SCCivApp No. 128 of 2022 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Jones, JA
The Honourable Sir Brian Moree, JA
SCCivApp No. 128 of 2022
and
Mr. Bradley Cooper, Counsel for the First Appellant
Leon Howard Smith, Pro se
Mr. Norwood Rolle, Counsel for the Respondent
Civil Appeal — Validity of Will — Application to Extend Time Within Which to Appeal — Appellate Court's Role Regarding Findings of Fact
In a trial before the Supreme Court, the Applicants/Intended Appellants (“the Applicants”) alleged that a 2007 Will (“the Will”) was not the valid will of the testator and it was a forgery. The Intended Respondent asserted that the Will was legitimate and brought a number of witnesses to give evidence to support her assertion. After hearing the evidence, the trial judge ruled that the Will was lawfully executed by the testator and was valid. The Applicants have appealed this finding.
Held: Application dismissed. The Applicants must pay the costs of the Intended Respondent, to be taxed if not agreed.
An appellate court must be extremely cautious about upsetting a conclusion of primary fact, as the trial judge has had the advantage of seeing and hearing the witnesses. An appellate court should only interfere if it is clear that the trial judge was plainly wrong or arrived at a conclusion not warranted by the facts and applicable law.
It is clear from the judgment that the judge did look at and consider all of the evidence before coming to the conclusion that the Will was not a forgery. There is no basis upon which this Court could set aside those findings.
Face v Cunningham [2020] EWHC 3119 (Ch); mentioned
Gatti v Shoosmith [1939] 3 All ER 916 at 919; considered
Aidan Richard Sherry v R [2013] UKPC 7; applied
The Minister Responsible for Crown Lands and Scott Findeisen & Brandon Findeisen SCCivApp No 79 of 2022; applied
Delivered by The Honourable
This is an application for an extension of time to appeal a judgment by Winder CJ (“the judge”) delivered on 4 August 2022 whereby he declared the Will of Alicia Maria Stockdale (“the Deceased”), made on 14 September 2007, valid.
The Applicants/Intended Appellants (“Applicants”) are Barrington Smith (“Barrington”) and Leon Smith (“Leon”). They are the sons of the Deceased and were the defendants in the action in the Supreme Court. The Intended Respondent, and the plaintiff in the Supreme Court, is Betty Smith-Forbes (“Betty”). Betty is the daughter of the Deceased and also the executrix named in her 2007 Will.
The Applicants asserted in the court below that the Will was not the Will of the Deceased. They said that she did not make that Will and that it is a forgery.
After a trial in which a number of persons gave evidence, the judge found that the Deceased did in fact make the Will. He said at paragraph 42: “ In the circumstances I am satisfied, on balance, that the 2007 Will was lawfully executed by Alicia in accordance with the Wills Act and I so declared it to be valid.”
The Applicants seek to appeal that judgment. The Notice of Appeal was filed about seven weeks after the judgment was delivered. It is out of time by about one week.
The factors which this Court takes into account when considering an application to extend time are well-known. They are the length of the delay, reasons for the delay, prospects of success, and prejudice to the other side.
The courts have held that a mistake by an intended appellant's attorney may be a satisfactory excuse for extending the time to appeal. In Gatti v Shoosmith [1939] 3 All ER 916 at 919, the English Court of Appeal said:
“…the fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the court in exercising its discretion. I say “may be,” because it is not to be thought that it will necessarily be exercised in every set of facts.”
The explanation for the appeal being filed out of time is rather simple. It was because the intended appellants and his lawyer believed that the six weeks period began when the judgment was perfected as opposed to when the judgment was delivered. That used to be the old law but was changed when the Court of Appeal Rules were amended in 2005. In the circumstances, in my judgment, the one week delay is not inordinate.
It is also settled law that the court will not accede to an application to extend the time when the proposed appeal is a fanciful one with no realistic prospects of success. Accordingly, we invited the Applicants to focus on the prospects of success of the proposed appeal.
At the hearing, the Applicants conceded that this proposed appeal raises no issue of law. It is simply an appeal against a finding of fact by the judge that the Deceased did make the 2007 Will and that it was not a forgery.
I pause to note that even though the Applicants in their pleaded defences refer to both allegations of forgery and fraud, it is clear that their case was based upon an allegation of forgery. In other words, their claim is that the Deceased did not make the 2007 Will. This is clear from the following exchange with Mr. Cooper, the attorney who appeared on behalf of Barrington:
“THE PRESIDENT: Is there a point of law raised in this appeal?
MR. COOPER: The only point that we can say was raised, my Lord, is that the learned judge failed to take into account all the extenuating circumstances.
THE PRESIDENT: Well, is that a point of law or point of fact?
MR. COOPER: No, my Lord.
THE PRESIDENT: So is it — your appeal does not raise any point of law. You are not saying the judge erred in law in burden of proof, shifting of proof, or anything of the sort. That is not what you are arguing, are you? You are just saying on the evidence the judge could not have come to the conclusion that he did.
MR. COOPER: Yes, my Lord.
THE PRESIDENT: Am I wrong?
MR. COOPER: You are correct, my Lord.
THE PRESIDENT: Okay. So — and as I understand the factual dispute is whether or not the deceased made the will.
MR. COOPER: That's correct, my Lord.
THE PRESIDENT: And the judge found that the deceased made the will. He accepted the evidence of the plaintiffs witnesses that the deceased made the will and he rejected the evidence of the other side that the deed did not make the will; is that correct?
MR. COOPER: That's correct, my Lord.” (Emphasis added)
That the claim was based on forgery is evident in the following exchange with Leon, who appeared pro se:
“THE PRESIDENT: Is it your case or is it the case of the defendant — of the appellant or the would-be appellant that the testator never made the will?
MR. SMITH: That is correct. And that whatever was made was a forgery.
THE PRESIDENT: Yeah. Okay. Now — and the judge did not accept that. So whether or not a person made a will or did not make a will is an issue of fact, is it not?
MR. SMITH: It is an issue of fact.” (Emphasis added)
Further, paragraph 30 of the judgment supports the fact that the allegations by the Applicants were not about fraud, but rather about forgery:
“30. Leon acknowledges the seriousness of allegations of fraud in his submissions at paragraph 45:
An allegation of forgery must be proved to the civil standard of proof, namely the balance of probabilities applies. Forgery is a serious allegation which traditionally required a high standard of proof — Hornal v Neuberger v Products (1957) 1 QB 247. Denning LJ held “The more serious the allegation the higher the degree of probability that is required.” This authority has subsequently been followed in authorities e.g. ( Ahmed v Addy and another 2004 EWHC 1465 (QB), Bush and another v King (2013) EWHC 966 (QB).” (Emphasis added)
There was no allegation of fraud, but about forgery. Additionally, there was no allegation that the Deceased made the Will under undue influence nor was it the claim that the Deceased was incompetent at the time she made the Will.
In his judgment, the judge said:
“36. I have considered the evidence of Pearline Ingraham, Torsheka Newbold, Abagale Brown and Thomas Desmond Bannister who all speak to Alicia coming into the firm to instruct and execute the 2007 Will. The execution of the Will was witnessed by Newbold and Brown who both signed the Will. I accept this evidence and must therefore accept that the Will is valid and effective. I find that the reference in the attesting affidavit of Newbold to witnessing the Will with a Samantha Bain was simply an error. Likewise the failure to recognize the minor error in Lois' name is hardly a cause for declaring the 2007 Will as fraudulent or a forgery.
37. This is not a question of unsoundness of mind some 8 years prior to Alicia's death.
In fact the defendants' case is that she was so sharp that she would not have missed the error in Lois' name. Additionally, contrary to suggestions by the defendants, in their submissions, that the 2007 Will was directed by Betty, this is not a case of undue influence and there is no pleading to that effect. The case is that the document was not signed by Alicia, it is a forgery and Betty is advancing a fraudulent document.
38. The defendants take issue with the degree to which Ingraham, Newbold and Brown were satisfied as to the identity of Alicia. They contend that there is no evidence that they took steps to verify Alicia's identity. I am satisfied with the evidence that Ingraham, who met with Alicia on two occasions in preparation of the Will, was introduced to Alicia by Bannister who had, at that time, known Alicia for 5 years and had prepared the earlier Will in 2004.
39. I accept that the defendants and Lois are surprised...
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