Hajna Moss v Michael Moss

• Jurisdiction: Bahamas
• Judge: Madam Justice G. Diane Stewart
• Judgment Date: 13 January 2023
• Docket Number: 2019/CLE/GEN/00530
• Court: Supreme Court (Bahamas)

Between

Hajna Moss

(A beneficiary of the Estate of Eldica Theresa Moss)

First Plaintiff

Terrill Lomar Van Carrington

(A beneficiary of the Estate of Eldica Theresa Moss)

Second Plaintiff

and

Michael Moss

(As Co-Executor of the Estate of Eldica Theresa Moss)

First Defendant

Cepeda Moss

(As Co-Executor of the Estate of Eldica Theresa Moss)

Second Defendant

Before:

The Hon. Madam Justice G. Diane Stewart

2019/CLE/GEN/00530

IN THE SUPREME COURT

COMMON LAW & EQUITY DIVISION

Civil Law — Probate — Will — Validity of Will — Lack of testamentary capacity — Undue Influence — Suspicious Circumstances

APPEARANCES:

Mr. Arthur Seligman and Mr. Ra'monne Gardiner for the First Plaintiff and Second Plaintiff

Mrs. Krystal Rolle Q.C. and Ms. Cyd Ferguson for the First Defendant and Second Defendant

1 By a Specially Endorsed Writ of Summons filed 17 ^th April, 2019, the First Plaintiff, Hajna Moss (the “First Plaintiff”) and the Second Plaintiff, Terrill Lomar Von Carrington (the “Second Plaintiff”) the daughter and grandson of the late Eldica Moss (the “Deceased”) (the “Plaintiffs”), respectively, sought to challenge the validity of the Deceased's Will executed on 1 ^st June, 2011 (the 2011 Will”).

2 Their claim was that the Deceased lacked the testamentary capacity to execute the 2011 Will and as a result it was executed by undue influence and under suspicious circumstances.

3 The Plaintiffs further seeks:-

• i. a pronunciation against the validity of the 2011 Will,

• ii. a declaration that the probate granted to the Defendants in Action No. 2018/PRO/npr/00021 on 14 ^th February 2018 (“the 14th February 2018 Grant”) is null and void

• iii. a Revocation of the 14 ^th February 2018 Probate pursuant to section 29 of the Probate and Administration of Estates Act, 2010 and in the Court's Inherent Jurisdiction,

• iv. iii. a Declaration that that the Deceased's Last Will and Testament dated 24 ^ih July, 2009 (the 2009 Will”) is the valid will of the Deceased.

4 The First Defendant, Michael Moss (the “First Defendant”) and the Second Defendant, Cepeda Moss (the “Second Defendant”) are the sons of the Deceased and co-executors of the Deceased's 2011 Will (the “Defendants”).

5 The Plaintiffs also seek an Order that the Defendants produce a complete and full accounting of all monies received and disbursed and all assets disposed by the Defendants or under their direction, including receipts and any other supporting documents. In the alternative, they seek a Declaration that the Deceased died intestate and an Order that the estate of the Deceased be administered under the rules of intestacy and pursuant to section 4 of the Inheritance Act, 2002 and a Grant of Letters of Administration be made to the Plaintiffs in the Estate of the Deceased along with an Injunction.

The Plaintiffs' Case

6 The Deceased who was born on 13 ^th August, 1930, was married to the late Charles E. Moss Sr., and their union produced seven children; four boys, Marcian Moss (deceased), the Defendants and Charles Moss and three girls, the First Plaintiff, Karen Ann Moss Carrington (deceased) and Deninez Anita Moss. The First Defendant and her sisters lived in the United States of America.

7 From June 2009, the Deceased would travel to New York one of the, United States of America (“New York”) for periods of one week to three months to visit with doctors and to spend time with her family. The frequency of her visits depended on her medical care. She would stay with the First Plaintiff at 730 Webster Avenue New Rochelle, NY 10801 in New York, USA, who took care of her twenty-four seven.

8 The Deceased had been diagnosed with several illness during her visits to New York for medical treatment. In January 2008, she was diagnosed with hypertension and a right carotid stenosis, in 22 ^nd October, 2009, she was informed that as a result of her poor vision she should not be driving and on 30 ^th October, 2009, she was diagnosed with Alzheimer's Dementia by Dr. Marcelo Laiz (“Dr. Laiz”), her primary care physician and was prescribed medication for the disease. On 6 ^th May, 2010, the Deceased fainted and was hospitalized in The Bahamas, which the First Defendant was aware of, because he had to take her to the hospital. The Deceased died on the 3 ^fd June of 2017.

9 The Deceased's diagnosis of and treatment for Alzheimer's Dementia, was known by all her children, including the First Defendant. As a result of her diagnosis her mental capacity declined. The First Defendant knew this because the Second Plaintiff consistently couriered the Deceased's medication to him from as early as 17 ^thNovember, 2010. He was also aware of the many car accidents which the Deceased was involved in since 2008 and also that she would go missing.

10 In 2011, the First Defendant was responsible for paying the Deceased's bills, taxes as well as paying her employees and he would also take her to her bank appointments and to her business manager Mr. Ronald Atkinson (“Mr. Atkinson”) who they claimed had a great influence over her at that time. The Deceased moved back to The Bahamas on 14 ^th September, 2014, where she lived until her death.

11 The gifts given by the Deceased pursuant to the 2009 Will were:-

Gifts under 2009 Will

12. Pursuant to the 2009 Will, the following devises of real properties were made:

• a) No. 1 Dorchester Street Property, New Providence, The Bahamas to the Second Plaintiff and his sister Taria Alexandria Garcia Rickets in equal shares as tenants in common;

• b) No. 2 Dorchester Street Property, New Providence, The Bahamas to Deninez Anita Moss;

• c) Dorchester and Heathfield Residence, New Providence, The Bahamas to the First and Second Plaintiffs in equal shares as tenants in common;

• d) Two vacant lots in Lake Cunningham, New Providence The Bahamas adjacent to the Penn Residence to the Second Plaintiff;

• e) Two vacant lots in northern Lake Cunningham, New Providence, The Bahamas to the First Plaintiff, Langston Issa Fishburne and Montana Gaiz Fishburne in equal shares as tenants in common;

• f) Residential lot occupied by Michael Markell Moss in Johnsons Estate Property, New Providence, The Bahamas to Michael Markell Moss;

• g) Residential lot occupied by Charles Edward (“Fuzzy”) Moss on Johnson Estate Property, New Providence, The Bahamas to Charles Edward (“Fuzzy”) Moss;

• h) A lot of two acres in Coral Harbour, New Providence, The Bahamas to the Second Defendant;

• i) Two residential lots at 730 Webster Avenue (block and lot number 1620-0054), New Rochelle, New York, The United States of America in the following shares: 52% to Terrill Lomar Van Carrington, 16% to the First Plaintiff, 16% to Langston Issa Fisburne and 16% to the Montana Gaiz Fishburne; and

• j) A residential lot with a small house located on Virginia Street, New Providence, The Bahamas to Taria Alexandria Garcia Rickets.

13. Pursuant to the 2009 Will, the following gifts of funds held in bank accounts and shares owned by the Deceased were made:

• a) The Deceased's children would equally receive shares in Moss Gas Company Limited;

• b) The Plaintiffs would equally receive the funds in the deceased's City Bank Account in New York, the United States of America; and

• c) The Deceased's children would equally receive shares in the Deceased's Bahamian bank accounts.

14. Pursuant to the 2009 Will, the following bequeaths of cash were made:

• a) St. Francis Xavier Cathedral, Nassau, Bahamas (Bishop Patrick Pinder) — the Building Fund would receive $20,000.00;

• b) The Second Plaintiff would receive $50,000.00;

• c) Langton Issa Fishburne would receive $50,000.00;

• d) Montana Gaiz Fishburne would receive $50,000.00;

• e) Taria Alexandria Garcia Ricketts would receive $20,000.00;

• f) Deninez Anita Moss would receive $20,000.00;

• g) Armando Naugustry Demetri Peter Moss would receive $20,000.00;

• h) Perez Lambert Marquis Moss would receive $20,000.00;

• i) Denez Demetrius Rashad Moss would receive $20,000.00;

• j) LaNajee Lauren Denard Moss would receive $20,000.00;

• k) TiAuren Javier Cadero Lamar Moss would receive $20,000.00;

• l) Lovar Peterson Moss would receive $20,000.00;

• m) Mechelle Rebecca Moss would receive $20,000.00;

• n) Tyler Chea Moss would receive $20,000.00;

• o) Carlos Edwardo Moss would receive $10,000.00;

• p) Charles Edward (“Chico”) Moss would receive $10,000.00;

• q) Aaron Hakeem Moss would receive $10,000.00;

• r) Tianna Elisabeth Carrington Ricketts would receive $10,000.00;

• s) Tiyan Alexis Carrington Ricketts would receive $10,000.00;

• t) Xavier Alexander Ricketts would receive $10,000.00;

• u) Aisha Yolanda Moss Clarke would receive $10,000.00;

• v) Michael Markell (“Lil Mike”) Moss would receive $10,000.00;

• w) Charles Daniel (“Lil Mike”) Moss would receive $10,000.00; and

• x) Cherisse Marie Albury Moss would receive $10,000.00

15. The residue of the estate would be bequeathed to the Second Plaintiff.

The 2011 Will

Gifts Under the 2011 Will

19. The gifts under the 2011 Will were significantly different from the gifts under the 2009 Will. The 1 ^st June 2011 Will bequeathed more assets to the Defendants, Charles “Fuzzy” Moss and their children.

20. The gifts to the First Plaintiff's children, Langston issa Fishburne and Montana Gaia Fishburne were lowered from $50,000.00 under the 2009 Will to $20,000.00. The 2011 Will also increased the gifts for the children of the Defendants and Charles “Fuzzy” Moss' from $10,000.00 to $20,000.00:

• a) Charles Edward (“Chico”) Moss;

• b) Aaron Hakeem Moss;

• c) Tianna Elisabeth Carrington Ricketts;

• d) Tiyan Alexis Carrington Ricketts;

• e) Xavier Alexander Ricketts;

• f) Aisha Yolanda Moss Clarke;

• g) Michael Markell (“Lil Mike”) Moss;

• h) Charles Daniel (“Lil Charles”) Moss.

21. Additionally, Selina Seymour the daughter of the Second Defendant received a...