Munnings et Al v Devaux et Al

• Jurisdiction: Bahamas
• Judge: Strachan, J.
• Judgment Date: 16 December 1996
• Court: Supreme Court (Bahamas)
• Docket Number: No. 1253 of 1995
• Date: 16 December 1996

Supreme Court

Strachan, J.

No. 1253 of 1995

Munnings et al

and

Devaux et al

Appearances:

Mr. Nicholas Zervos, Mr. Dennis Gomez, Mr. M. Hall and Mrs. Hope Strachan for the plaintiffs.

Mr. Cedric Parker and Mr. Willie Moss for the defendants.

Will - Validity — Validity of deceased's signature — Two siblings under a will alleged that the signature it bore was not their father's — Judgment that when the questioned signature was considered in the light of the direct and circumstantial evidence of signing of the will together with the expert evidence it was more likely than not that the testator did write the questioned signature.

Strachan, J.

1 Mr. Vernal Percy Munnings, a well-known and wealthy Bahamian businessman died, unmarried, on 23 March 1995 leaving eight (8) adult children, a multi-million dollar estate comprised almost entirely of land and two wills, one dated 1979 and another dated 1994. While I have referred to the documents as “wills”, and shall continue to do so, 1994 will is not accepted by two of the siblings. They allege that the signature it bears is not their father's. Under the provisions of 1979 will his estate is left entirely and forthwith to his eight children, each receiving one eight but the 1994 purports to make provisions for dealing with it by directions communicated to the executrices, two of his daughters in the testator's lifetime and if admitted evidence of those directions are accepted, an essential difference upon the entitlements of siblings would be a postponement of the date when, final distribution occurs.

2 One consequence of the non-acceptance by two siblings of the signature on the 1994 is that two actions were commenced, being probate action No. 1253/1995 (Sandra Munnings Rogers against Judy Munnings Deveaux) (action No. 1) and probate action No. 59/1996 (Anthony Munnings and Sandra Munnings Rogers against Judy Eleanor Deveaux and Vanrea Belinda Fisher) (action No. 2) and, consolidated, they are now before me. Surprisingly, there having been summonses for directions and an order for consolidation and another for speedy trial, when it commenced it could not be proceeded with without procedural skirmishes. That was because by reason of the state of the pleadings Mr. Parker for the defendants, felt obliged to argue that the plaintiff's claims be dismissed as disclosing no reasonable cause of action and that any saving amendments should not be allowed.

3 With this pleading point I shall deal as briefly as is consistent with making my decision and the reasons for it intelligible and then proceed to consider any issues, if any, remaining, whether procedural or substantive, in the like manner. I disagree with Mr. Parker about the defect in statement of claim in action No. 1. It must of course be read as a whole, but I would draw attention to paragraphs two (2) to seven (7) inclusive and say of paragraph 7, that the addition of the final words “not having been signed by the deceased”, appears to me to be singularly material in that they identify in what way the execution of the 1994 will failed to comply with what section 9 of the Wills Act, (the Act) plainly requires. I say that fully mindful of what, by judicial decisions, have been held to amount to “signing” under section 9. The better approach would, as it seems to me, have been to take the point by asking long before for further and better particulars. The absence of any explanation from Mr. Parker for the defendants, for them being able to put in a defence without requiring such, their failure to apply to have the statement of claim dismissed during the interlocutory stage and the fact that it always to be remembered that striking out for failure to disclose a reasonable course of action is reserved for the clearest of cases and where a saving amendment is inappropriate, reinforces the conclusion. Additionally, Mr. Parker appears to have overlooked the counterclaim and defence which, as an independent action would await hearing and, given the nature of the claim, without further delay.

4 Paragraph 6 of his counterclaim reads –

“The defendants admit the words of the devise in the Will of 2nd July 1994 as set out in paragraph 6 of the statement of claim and aver that the deceased did in fact give the defendants directions in accordance with the said devise and state further that the said devise is and constitutes a valid testamentary disposition of his entire estate by the deceased and is capable of sustaining a grant of Probate by the court.”

5 Hence even if I acceded to his request, the signature issue would remain.

6 Mr. Parker's further contention is that Probate No. 2 also failed to disclose a reasonable cause of action. An examination of the claim shows that the defendant, Mrs. Judy Deveaux as sole executrix of 1979 will, had presented the 1994 will for probate, had allegedly, intermeddled in the testator's estate, failed to account to the plaintiff as a residuary legatee and devisee named in 1979 and deprived her of her share of the assets. It then asks for certain reliefs, namely, an order requiring the defendant to withdraw her application for probate of 1994 will and “for grant of probate of the 1979 Will or letters of administration thereof be issued to the defendant”. Further, the plaintiff, Sandra Munnings Rogers asks for injunction against the defendant pending the issuance of a grant of probate, or letters of administration or further order, inquiry, accounting and costs. It appears that word “defendant” in the expression “issued to the defendant” is clearly intended to be plaintiff.

7 Despite the scope of the reliefs, the pivotal issue, though not well expressed is the validity or not of the 1994 will and the reason for that, again as in Probate No. 1, is it not being duly executed by the testator, though here, it does not plead, as does Probate No. 1, that it was not, because the testator did not sign it. That being so, it is unnecessary to dwell on it, since, in my, view, the decisive issue it raises is adequately raised under Probate No. 1. is apt, however, to recall the well-known passage from the judgment of Lord Edmund, P. Davies in Farrell v. Secretary of State for Defence [1980] 1 All E.R. 166. There at p.173 he wrote –

“It has become fashionable in these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continued to play an essential part in civil actions, and a/though there has been since the Civil Procedure Act, 1833 a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trials with a jury. To shrug off a criticism as ‘a mere pleading point’ is therefore bad law and bad practice. For the primary purpose of pleadings remains, and it can still prove of vital importance. That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.”

8 So far signing by the testator or not, is recognized as the sole issue raised on the claim in Probate No. 1, but paragraph 6 to which I referred earlier, alleges that no directions were given to the executrices, an allegation which if correct would have the legal consequence of emptying the 1994 will of dispositive effect. There are therefore two issues. First, is the signature which the 1994 will bears, one which the testator himself wrote. Second, did the testator gave any directions, to which this court could give dispositive effect, to the executrices, named in 1994 will, during his lifetime?

9 These produce state of things which calls in the light of the provisions of section of the Act, for immediate comment. section 9 states –

“9. No will shall be valid unless it shall be in Writing and executed in manner herein-after mentioned; (that is to say,) it shall be signed at the Foot or End thereof by the Testator, or by some other Person in his Presence and by his Direction; and such Signature shall be made or acknowledged by the Testator in the Presence of Two or more Witnesses present at the same Time, and such Witnesses shall attest and shall subscribe the Will in the Presence of the Testator.”

10 So plainly there are instances in which it can easily be seen that fraud may not be involved, when a will is alleged not to have been duly executed. For examples, the testator may have failed to sign at the foot or end of the will (as judicially interpreted) or there may be less than two witnesses or lack of the requisite testamentary intent. But where, as here, fraud is not alleged, it is less easy to appreciate how the testator's signature can be challenged as not genuine and while much will depend on the facts of this and any other case, the result may well approach or even amount to being prepared to wound but unwilling to wield the knife.

11 For the answer to the first question, the law allows both direct and indirect evidence of due execution and the circumstances surrounding it to be considered and places the burden on the propounder, the defendants, to satisfy the court that it is more likely than not that the testator himself signed the 1994 will. Of course, the plaintiffs, who are challengers, allege that the testator did not sign the 1994 will must, to succeed, make good their allegation.

12 There are, of course, instances where it permissible and safe to rely on the presumption of due execution In The Law Relating to Wills by W.J. Williams at p. 73 the learned author states –

“If a will, on the face of it, appears to be duly executed, the presumption is in favour of due execution, applying the principle omnia praesumuntur...