Phillip Moncur Jr. v Sonia Moncur
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 20 January 2023 |
| Docket Number | 2019/Pro/cpr/00009 |
| Court | Supreme Court (Bahamas) |
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
Madam Justice G. Diane Stewart
2019/Pro/cpr/00009
In the Matter of the Grant of Probate issued on 14th September A.D. 2018 in action No.Pro/npr/00217 of 2017 to Sonia Moncur and Deneria Butler in the Estate of Phillip Alexander Moncur Sr.
and
and
Mrs. Tanya Wright for the Plaintiffs
Ms. Glenda Roker for the Defendants
By a Specially Endorsed Writ of Summons filed 22 nd January 2019, the Plaintiffs sought an order setting aside the Grant of Probate issued in Pro/npr/00217 of 2017 to the Defendants. They also sought declarations that the Last Will and Testament of Phillip Alexander Moncur Sr. dated 22 nd January 2013 (the “Will”) and the Deed of Assent from Sonia Moncur to Deneria Butler to Sonia Moncur dated 25 th September 2018 be declared null and void so that it would result in his having died intestate and for an order made for the equal distribution of his estate amongst the Plaintiffs and the First Defendant.
The Plaintiffs also sought injunctions restraining the First Defendant from evicting the Plaintiffs and from disposing or otherwise encumbering the subject property until the matter was determined.
The Plaintiffs claim was based on their relationship with their and the First Defendant's father, Phillip Alexander Moncur Sr. (the “Deceased”), and specifically the relationship surrounding the family home situate No. 8 Rolle Avenue in the Eastern District of New Providence (the “Family Home”). They claim that the Second Plaintiff assisted with the rebuilding of the Family Home and that while the First Defendant provided two hundred dollars towards its reconstruction, she eventually moved out, and later took the Deceased to live with her and allegedly ensured the alienation of the Deceased from the Plaintiffs. Additionally, the Deceased had several medical conditions which would have prevented him from creating the Will.
The Defendants claim that the Deceased alone was responsible for the construction of the Family Home. The First Defendant's contribution exceeded the amount claimed by the Plaintiffs and that she also contributed toward the Deceased's upkeep. They denied alienating the Deceased or that his health was in disrepute. By Counterclaim, the First Defendant sought an eviction order against the Plaintiffs from the Family Home in addition to damages stemming from the loss of use and enjoyment of the Family Home from the date of the grant of probate up to the determination of the matter.
The issues for the Court's determination are:_
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i. Did the First and Second Defendant exert undue influence and pressure over the Deceased in the execution of his Will?
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ii. Did the Defendants possess a relationship of confidentiality in relation to which a presumption of undue influence would arise?
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iii. Was the execution of the Will attended by suspicious circumstances such that the Deceased was in such a condition of mind that he was unable to understand the nature of the act and its effect or to comprehend and appreciate matters to which he ought to give effect?
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iv. Does the manner in which the Will was executed at the office of the Second Defendant excite suspicion?
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v. Was there a free and voluntary exercise of free will by the Deceased in the execution of the Will?
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vi. Whether the First Defendant should be granted an order evicting the Plaintiffs from the Family Home and be awarded damages for the loss of use and enjoyment of the Family Home.
The First Plaintiff, the eldest son of the Deceased, averred that the Deceased was employed as a warehouse manager with JBR Building Supplies (“JBR”) until his retirement in 2011 due to a diabetic condition which ultimately resulted in the amputation of two toes on his left foot. The Deceased and the Second Plaintiff almost singlehandedly built the Family Home. The First Defendant's only contribution was two hundred dollars towards some masonry work to one of the rooms.
The water and electricity supplies to the Family home were both disconnected in 2016 after he and the First Defendant had failed to make the required payments. Once the First Defendant vacated the Family Home, she and her two children never returned. The Second Plaintiff was the primary caretaker for the Deceased and was trained to take care of his wounds. He and the Second Plaintiff were listed as the Deceased's next of kin after his two discharges from the hospital.
In January 2012 the First Defendant removed the Deceased from the Family Home and promised to return him in a few days. However, she refused to return him and they would visit him by the First Defendant and take money to him from time to time. The Deceased only spoke about the past and never the present. At times he could not remember his children and his speech would be labored. He had suffered a series of heart attacks and although he could walk he was mostly bedridden. Prior to his illness, the Deceased told him that the Family Home was for all of his children.
The Deceased would not have been able to read the contents of the Will as his eyesight had been poor since childhood. Leaving everything to the First Defendant was contrary to his previously expressed intentions. During his mother's lifetime, the Deceased would utilize Carolyn Lightbourn to make legal and other formal arrangements for him as she was a legal secretary. However, the Deceased retained the law firm where the Second Defendant was employed to prepare the Will.
During cross examination the First Plaintiff admitted that they currently did not have any electricity at the Family Home. In 2016 he could not recall if the Deceased resided at the Family Home but he knew that the First Defendant was not there. The arguments between himself and the First Defendant were the usual arguments you would expect from a brother and a sister.
In 2011 the Deceased was not completely blind, but thereafter he could not understand what was going on around him and he was not the same person. On one of the occasions he was released from the hospital, the Second Plaintiff's wife took him home because he was at work. He worked shifts and would usually work nights. They would let him know what was needed and he would provide it. He would visit the Deceased ‘plenty’ while he was living with the First Defendant as a result he did not need to call. He added that the First Defendant was not always at home. He agreed that there was no evidence of mental incapacity between 2 nd April 2013 and 14 th January 2016.
During re-examination he explained that the Second Defendant was a family friend but that she only remained in the car when she visited the Deceased at the Family Home. He did not know what the Second Defendant did at Davis & Co. He did not have any proof that the First Defendant pressured his father. After the passing of Hurricane Matthew the Second Plaintiff told the First Defendant to return home but she did not. He was aware that his father was at the Yellow Elder Home.
The First Plaintiff stated that the Deceased would always call his aunt, Carolyn Lightbourn when he needed a legal opinion and that all of his legal documents were handled by her.
The Second Plaintiff, the second son of the Deceased, averred that he and the Deceased completed the substantial construction and improvements to the Family Home. He, his wife and their two sons presently live in the Family Home. He and the Deceased paid the reconnection fee for the water and electricity after the First Plaintiff and the First Defendant failed to make payments. Around that same time, his father's condition worsened and he became primarily responsible for his care. He suffered from diabetes which resulted in his having two toes amputated.
The First Defendant removed his father from the Family Home in 2012. Their father told both him and the First Plaintiff many times that he wished to return home. The First Defendant would deny them visitation, making up excuses as to why they could not visit their father, or why they could not pick him up. Due to the Deceased's age and medical conditions, including his poor eyesight he would not have been able to read the contents of the Will on his own without assistance. The Deceased had expressed distrust for members of their mother's adoptive family which included the Second Defendant and warned them never to trust them with family matters. The First Defendant made all the arrangements for the preparation of the Will. They were never made aware of the existence of the Will until after the Deceased's death.
The Defendants asserted undue influence over the Deceased in the execution of the Will.
During cross-examination he stated that a friend of theirs did the electrical work on the Family Home along with a plumber and another man who completed the roofing. There was a contractor who would instruct them on what to do. The First Defendant had shut off the electricity in the Family Home and collected the deposit so they were receiving electricity from their neighbors. The Deceased was not completely blind but had issues with his good eye. He could not recall which law firm Carolyn Lightbourn, his mother's sister, worked for but recalled that she dealt with her mother's estate.
He could not say who acted on his parents' behalf in the preparation and execution of the Conveyance for the Family Home. He had no idea why the Deceased would retain Davis & Co. if he had previously utilitzed his aunt. His mother had worked for Mr. Christie. The Second Defendant was someone the Deceased grew up with but she was not his close friend. She would visit with the Deceased from the comfort of her car and would not come into the...
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